THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

Law  Library 
Georgia  State  Library 


GOBER'S 

GEORGIA  FORM  BOOK 
AND  PROCEDURE 

A  COLLECTION  OF  LEGAL  FORMS  WITH  ANNO. 

TATIONS  FROM  THE  REPORTS  OF  THE 

SUPREME  COURT  AND  THE  COURT 

OF  APPEALS  OF    GEORGIA 

ON  QUESTIONS  RELAT* 

ING  TO  FORMS  AND 

PROCEDURE 


PREPARED  FOR  THE  USE  OF 

THE  JUDICIARY;  THE  BAR,  THE  OFFICERS  OF 

COURT,  AND  BUSINESS  MEN 


Executio  juris  non  habet  injuriam 


BY 
GECX  F.  GOBER,  A.  M. 

ATTORNEY  AT  LAW 
ATLANTA 


ATLANTA 
THE  HARRISON  COMPANY 

1917 


T 


COPYRIGHT,  1917 

BY 
THE  HARRISON  COMPANY 


vfi 


DEDICATED 
TO 

ALICE  BLACKWELL  GOBER 

MY  WIFE 
THE  AUTHOR 


PREFACE 

The  work  of  preparing  this  volume  has  developed  out  of  all 
proportion  to  what  I  anticipated  in  the  outset.  The  great  trouble 
under  our  system  is  that  there  are  so  many  things  that  are  not 
fixed  and  determined.  Our  system  of  pleading  provides  that  a 
party  must  plainly,  fully  and  distinctly  set  forth  his  cause  of 
action,  and  this  leaves  the  form  to  be  passed  upon  under  the 
discretion  of  about  one  hundred  trial  judges  in  the  City  and 
Superior  Courts,  and  this  discretion,  in  many  instances,  is  con- 
trolled by  individual  and  particular  ideas.  For  this  reason,  a 
form  must  be  broad,  since  a  precise  and  exact  form  needs  its 
author  to  defend  it  when  it  is  passed  upon  under  such  discretion. 
For  this  reason,  it  has  been  thought  a  better  plan  to  present  as 
much  as  possible  forms  that  have  been  used,  and  to  a  certain 
extent  have  met  with  the  approval  of  the  profession,  rather  than 
to  present  radical  changes. 

It  is  hoped  that  the  first  part  of  the  book,  which  is  intended 
especially  for  Justices  of  the  Peace,  contains  some  things  that, 
being  ready  at  hand,  will  be  of  great  service  to  the  bar  in  all  the 
Courts.  This  refers  to  the  chapters  upon  disqualification  of 
judges,  qualification  of  jurors,  continuances  and  evidence.  These 
matters  could  not  be  treated  exhaustively,  since  such  a  course 
would  have  extended  the  size  of  the  volume  beyond  what  was 
contemplated.  It  was  found  utterly  impracticable  to  embody 
any  great  amount  of  substantive  law  in  the  work,  since  this 
would  have  carried  it  beyond  all  bounds.  The  author  hopes  that 
his  work  on  Pleading  and  Practice,  which  will  soon  be  pub- 
lished, will  supply  much  that  he  would  have  been  glad  to  have 
included  in  this  book. 

The  author  wishes  to  acknowledge  his  obligation  to  H.  B. 
Skillrnan,  Esq.,  for  his  help  and  assistance  in  the  arrangement 
of  the  book  and  the  making  of  the  index.  Mr.  Skillman  made 
the  index  to  Park's  Code,  and  he  has  no  superior  in  this  country 
in  such  work.  Also,  I  have  had  throughout  the  preparation  of 
the  book  the  efficient  aid  and  help  of  Mrs.  Ted  Trennor  Pierson, 
my  secretary,  who  has  worked  faithfully  from  start  to  finish  in 


the  undertaking,  and  to  whom  I  am  under  many  obligations  for 
her  services  as  an  able,  painstaking  and  efficient  stenographer. 

In  writing  the  last  lines  that  go  into  this  volume,  allow  me 
to  say,  in  the  language  of  our  Code,  that  the  object  of  all  legal 
investigation  is  the  discovery  of  the  truth.  Right  was  made 
before  the  law  and  exists  independent  of  the  law.  Right  is 
founded  upon  truth.  A  thing  or  transaction  never  happened  in 
two  ways.  It  is  either  one  way  or  another  way. '  Truth  is  fixed 
and  will  remain  eternal  as  the  mountains.  No  one  should  be 
imposed  upon  by  a  counterfeit  of  truth,  which  is  often  presented 
p] easing  as  the  fabled  mermaid  on  the  water,  beautiful  as  a  fair- 
haired  maiden  in  aspect,  but  having  below  the  scaly  form  of  an 
ocean  monster.  Judges  and  juries  should  search  and  strive  for 
the  truth;  the  highest  duty  of  a  lawyer  is  to  respect  and  bow 
to  it;  courts  should  recognize  the  truth.  Human  transactions 
are  measured  by  human  experience  and  human  nature,  and  it 
sometimes  requires  the  wisdom  of  Solomon  to  discover  it.  Every 
man  exercising  a  judicial  function  should  remember  the  motto 
of  this  great  State  and  never  swerve  in  his  devotion  to  it, — 
Wisdom,  Justice  and  Moderation. 

GEO.  F.  GOBER. 

Atlanta,  Ga.,  April  17,  1917. 


PART  I. 

Procedure  and  Practice  in  Justice  Court. 


CODER'S 

Georgia  Form  Book  and  Procedure 


PART  I 


PROCEDURE  AND  PRACTICE  IN  JUSTICE 
COURT 


(NOTE:  Code  references  herein  are  equally  applicable  to  the  Code  of 
1910  and  to  Park's  Annotated  Code  of  Georgia,  1914,  except  in  those 
instances  where  specific  reference  is  made  to  the  latter  Code.  Georgia 
Supreme  Court  Reports  are  indicated  by  the  use  of  a  /.  Thus  a  refer- 
ence to  volume  100,  page  25,  will  read  100/25.  Georgia  Court  of  Appeals 
Reports  are  indicated  by  the  abbreviation  App.  Thus  the  reference 
17  App.  34  means  volume  17,  page  34,  of  the  Court  of  Appeals  Reports. 
Parallel  citations  are  made  to  the  Southeastern  Reporter  by  the  use  of 
the  abbreviation  S.  E.,  they  appearing  in  parentheses  immediately  fol- 
lowing the  official  report  citation.) 


CHAPTER  I 

DISQUALIFICATION  OF  JUDGES. 

SECTION  1.  WHEN  JUDICIAL  OFFICER  is  DISQUALIFIED.  In 
the  trial  of  cases  the  question  frequently  arises  whether  the 
presiding  judge  is  disqualified  under  the  law  to  try  it.  This  is 
to  be  determined  by  section  4642  of  the  Code,  which  is  as 
follows : 

"^"o  judge  or  justice  of  any  court,  no  ordinary,  justice  of  the 
peace,  nor  presiding  officer  of  any  inferior  judicature  or  com- 
mission, can  sit  in  any  case  or  proceeding  in  which  he  is  pecu- 
niarily interested,  or  related  to  either  party  within  the  fourth 
degree  of  consanguinity  or  affinity,  nor  of  which  he  has  been 


2  DISQUALIFICATION  OF  JUDGES 

of  counsel,  nor  in  which  he  has  presided  in  any  inferior  judi- 
cature when  his  ruling  or  decision  is  the  subject  of  review, 
without  the  consent  of  all  the  parties  in  interest:  Provided 
that  in  all  cases  in  which  the  presiding  judge  of  the  Superior 
Court  may  have  been  employed  as  counsel  before  his  appoint- 
ment as  judge,  he  shall  preside  in  such  cases  if  the  opposite 
party  or  counsel  agree  in  writing  that  he  may  preside,  unless 
the  judge  declines  to  do  so." 

SEC.  2.  How  DEGREE  OF  RELATIONSHIP  is  DETERMINED. 
The  question  of  relationship  is  very  comprehensively  treated 
in  the  case  of  Short  v.  Mathis,  101/288  (28  S.  E.  918), 
by  Judge  Cpbb  in  his  opinion  in  that  case,  in  which  he  says: 
''The  degree  of  relationship  referred  to  in  the  section  of  the 
code  above  quoted  is  to  be  ascertained  according  to  the  rules  of 
the  canon  law.  Wetter  v.  Habersham,  60  Ga.  193. 

"  'The  method  of  computing  these  degrees  in  the  canon  law, 
which  our  law  has  adopted,  is  as  follows:  We  begin  at  the 
common  ancestor  and  reckon  downwards;  and  in  whatsoever 
degree  the  two  persons,  or  the  most  remote  of  them,  is  distant 
from  the  common  ancestor,  that  is  the  degree  in  which  they  are 
related  to  each  other.'  2  Black.  Com.  mar.  p.  206.  The  com- 
mon ancestor  in  the  present  case  is  the  great-grandfather  of 
Judge  Butt  and  the  great-great-grandfather  of  W.  E.  Butt,  the 
legatee.  From  the  common  ancestor  to  Judge  Butt,  the  great- 
grandson,  would  be  three  degrees ;  from  the  common  ancestor  to 
W.  E.  Butt,  the  legatee,  would  be  four  degrees,  and  this  being 
the  longer  line  would  fix  the  degree  of  relationship.  Therefore 
the  legatee  would  be  related  to  the  judge  within  the  fourth 
degree,  and  the  judge  would  be  disqualified  to  preside,  under 
the  section  of  the  code  above  quoted.  Judge  Butt  and  W.  E. 
Butt  would  be  fourth  cousins. 

"Fifth  cousins  equally  removed  from  the  common  ancestor 
are  also  related  to  each  other  within  the  fourth  degree  of  con- 
sanguinity. Fifth  cousins  when  not  equally  removed  from  their 
common  ancestor  are  not  related  within  the  fourth  degree.  The 
annexed  diagram  illustrates  the  degrees  of  relationship  above 
discussed." 


COMMONoANCESTOR. 


ELDREDGE  C.  BUTT 


W,  E.  BUTT  (LEGATEE), 


WM.  M.  BUTT 


W.  B.  BUTT  (JUDGE) 


o 


4  DISQUALIFICATION  OF  JUDGES 

SEC.  3.  RELATIONSHIP  OF  JUDGE  TO  COUNSEL.  "A  judge 
whox  is  related  within  the  fourth  degree  of  consanguinity  or 
affinity  to  counsel  for  the  applicant  in  an  application  for  alimony 
in  which  an  allowance  for  counsel  fees  is  asked  is  disqualified 
from  presiding  in  the %  case ;  and  this  is  true  notwithstanding 
counsel  have  a  binding  contract  with  the  applicant  which  obli- 
gates her  to  pay  'them  fees  commensurate  with  their  services, 
independently  of  whether  the  application  for  alimony  and  coun- 
sel fees  is  successful  or  not."  115/259  (1)  (41  S.  E.  616). 

SEC.  4.  DUTIES  OF  JUDGE  OF  SUPERIOR  COURT.  "When 
duties  are  imposed  on  a  judge  of  a  superior  court  as  an  officer, 
another  judge  of  the  superior  court  has  no  power  to  issue  a 
mandamus  to  compel  the  performance  of  such  duties."  134/ 
844  (1)  (68  S.  E.  736). 

SEC.  5.  POLITICAL  ACTIVITY.  "The  allegation  that  a  judge 
is  active  in  aiding  one  faction  of  a  political  party  in  a  county 
to  gain  control  of  the  party  and  the  politics  of  the  county,  in 
order  to  further  his  political  purposes  and  interests  and  those  of 
a  faction  with  which  he  is  in  sympathy,  does  not  disqualify  him 
from  passing  on  an  application  to  enjoin  the  registrars  from 
filing  a  registration  list  alleged  to  have  been  prepared  by  them 
with  the  names  of  certain  persons  opposing  such  faction  ille- 
gally left  off  for  the  purpose  of  gaining  such  control,  and  to 
compel  them  by  mandamus  to  place  such  names  on  the  registra- 
tion list."  134/844  (2a)  (68  S.  E.  736). 

SEC.  6.  MAYORS.  "A  mayor  is  not  disqualified  to  try  one 
accused  of  a  violation  of  a  city  ordinance,  notwithstanding  in 
the  event  of  a  conviction  a  portion  of  the  fine  imposed  is  to  be 
paid  to  him  as  costs."  9  App.  203  (70  S.  E.  967). 

SEC.  7.  PERSONAL  KNOWLEDGE  OF  JUDGE.  "A  judge  should 
not  be  disqualified  from  presiding  in  a  cause  because  he  may 
personally  know  some  fact  which  may  be  under  inquiry  in  the 
case.  However,  neither  judge  nor  juror  can  use  such  personal 
knowledge  as  a  factor  in  solving  the  judicial  problem."  128/ 
293  (57  S.  E.  493). 

SEC.  8.  JUDGMENT  is  VOIDABLE  BUT  NOT  VOID.  "If  a 
judge  who  is  disqualified  presides  and  renders  judgment,  the 
judgment  is  not  void,  but  merely  voidable.  In  such  a  case  if 
the  judge  is  disqualified  generally,  and  the  court  of  which  he 
is  the  lawful  judge  has  jurisdiction  of  the  person  of  the  de- 


DISQUALIFICATION  OF  JUDGES  5 

fondant  and  of  the  subject  matter  of  the  suit,  he  ought  to  retire 
from  the  bench  if  he  is  disqualified-;  if  he  does  not  the  judgment 
is  not  void,  but  voidable.  In  the  case  of  the  judge  pro  Jiac  vice, 
unless  he  has  been  selected  in  accordance  with  the  statute,  he 
has  no  right  to  go  upon  the  bench  at  all,  and  what  might  be 
errors,  subject  to  review  in  the  qualified  judge,  are  swallowed 
up  in  the  greater  consideration  that  such  an  incumbent  hasn't 
even  the  right  to  commit  errors."  4  App.  197  (61  S.  E.  30). 

SEC.  9.  SUGGESTION  OF  DISQUALIFICATION.  "The  disquali- 
fication of  a  judge  by  reason  of  relationship  to  the  prosecutor 
must,  if  known  to  the  accused  or  his  counsel,  be  suggested  before 
verdict,  and  if  not  then  urged,  will  not  be  cause  for  a  new  trial. 
Even  if  under  the  facts  of  this  case,  the  judge  was  disqualified, 
it  was  too  late  to  raise  the  question  for  the  first  time  on  the 
motion  for  a  new  trial."  117/15  (43  S.  E.  438). 

SEC.  10.  POLICE  COMMISSIONERS.  "Where  the  charter  of 
a  city  vests  the  authority  in  such  a  board  to  select,  control  and 
discipline  the  police  force  of  the  city,  and  no  provision  is  made 
for  disqualifying  a  member  from  acting  in  a  case  where  he  may 
be  biased  or  prejudiced  against  the  policeman  on  trial,  an  objec- 
tion can  not  be  properly  made  to  a  member  of  a  board  partici- 
pating in  the  trial  on 'this  ground."  125/18  (2)  '(53  S.  E. 
811). 

SEC.  11.  WHERE  JUSTICE  OF  THE  PEACE  is  DISQUALIFIED. 
"When  a  justice  of  the  peace  is  disqualified  from  presiding,  and 
there  is  no  other  justice  of  the  peace  in  his  district  who  is 
qualified,  any  justice  of  the  peace  of  the  county  is  qualified  to 
issue  all  process  and  to  preside  in  his  district  and  if  a  justice 
of  the  peace  is  sued  under  such  circumstances,  the  suit  may  be 
located  in  any  adjoining  district.  Any  justice  or  notary  ex- 
officio  justice  of  the  peace  may  preside  in  any  district  of  their 
county  in  all  cases  when  the  justice  or  notary  of  such  district 
is  disqualified."  Code,  §4669. 

SEC.  12.  WHERE  THERE  is  No  JUSTICE  OF  THE  PEACE. 
"Where  there  is  no  justice  of  the  peace  in  any  district  where  a 
defendant  resides,  and  there  is  one  and  he  refuses  to  serve  gen- 
erally or  in  any  particular  case,  t|ie  suit  may  be  located  in  any 
adjoining  district."  Code,  §4670. 

SEC.  13.  TRANSFER  OF  SUIT  TO  ADJOINING  DISTRICT.  "If 
suits  are  already  commenced  and  are  suspended  for  want  of  a 


6  DISQUALIFICATION  OF  JUDGES 

justice  of  the  peace  to  preside  or  competent  jury  to  try  such 
cases,  such  suits  shall  be  removed  to  the  adjoining  districts, 
unless  the 'evil  is  removed  within  sixty  days,  or  upon  the  fact 
being  made  to  appear  to  the  court  by  affidavit  of  either  party 
to  such  suits."  Code,  §4672. 

SEC.  14.  TRANSFER  OF  SUITS  TO  COUNTY  SITES.  "If,  from 
any  cause  all  such  suits  can  not  be  located  or  presented  in  some 
adjoining  district,  they  may  be  commenced  or  removed  to  the 
justice's  district  which  embraces  the  county  site."  Code,  §4673. 

SEC.  15.  POWERS  OF  JUSTICE,  ETC.  "The  justices  of  the 
peace  and  constables  of  any  district  where  a  suit  is  thus  begun 
or  removed  have  the  same  power  that  those  officers  have  in  the 
proper  districts."  Code,  §4674. 

SEC.  16.  DISQUALIFICATION  OF  JUDICIAL  OFFICERS.  "The 
statutory  grounds  of  the  disqualification  of  a  judicial  officer  are 
exhaustive,  as  contained  in  the  Civil  Code,  §4642."  11  App. 
783  (3)  (76  S.  E.  165). 

SEC.  17.  PREPARATION  OF  CONTRACT  BY  JUDOE  AS  ATTOR- 
NEY. "The  fact  that  the  presiding  judge  may  have  prepared, 
as  an  attorney  at  law,  a  form  from  which  was  drawn  a  contract, 
the  validity  of  which  was  involved  in  a  pending  case,  does  not, 
under  any  of  the  provisions  of  the  section  of  the  code  above 
referred  to,  render  the  judge  disqualified  to  try  the  case."  11 
App.  783  (4)  (76  S.  E.  165). 

SEC.  18.  DUTY  OF  JUDGE  TO  DISQUALIFY.  It  is  the  duty  of 
the  judge  when  he  is  disqualified  in  a  case  to  make  it  known  to 
the  court,  and  he  owes  this  much  not  only  to  his  office  but  to 
himself.  It  frequently  happens  that  matters  come  up  and  it 
does  not  occur  to  him,  and  counsel  for  either  side  have  the  right 
to  present  the  matter  to  the  court.  In  such  a  case  the  following 
would  be  a  suitable  form: 

JOHN  JONES       ^|  SUIT  FOR  DAMAGES. 

vs.  V  IN SUPERIOR  COURT. 

WILLIAM  SMITH.    ) TERM,  19 

In  the  above  stated  case  counsel  for  the  defendant  shows  to 
the  court  the  following  facts : 

1.     That  the  Hon ,  Judge  of  the  Superior  Court 

of County,  is  disqualified  in  said  case  in  that  he  is 

related  within  the  fourth  degree  of  consanguinity  to  the  plain- 


DISQUALIFICATION  OF  JUDGES  7 

tiff,  John  Jones,  and  for  this  reason,  under  the  statute,  he  is 
not  competent  to  sit  as  a  judge  in  said  case. 

Counsel  for  defendant  stands  ready  to  show  these  facts  to  the 
court. 

JOHN  DOE, 

Attorney  for  Defendant. 
-OR— 

JOHN  JONES  }  SUIT  FOR  DAMAGES. 

vs.  V  IN SUPERIOR  COURT. 

GREAT  AMERICAN  RAILROAD,    j TERM,  19.  ... 

In  the  above  stated  case,  counsel  for  the  plaintiff  shows  to 
the  court  the  following  facts : 

1.     That  the  Hon ,  Judge  of  the  Superior 

Court  of County,  is  disqualified  in  said  case,  in 

that  he  is  related  within  the  fourth  degree  of  consanguinity 

to ,  and  the  said is  a 

stockholder  in  the  defendant  company,   and   for  this  reason, 
under  the  statute,  he  is  incompetent  to  sit  as  judge  in  said  case. 
Counsel  for  plaintiff  stands  ready  to  show  these  facts  to  the 
court. 

JOHN  DOE,  * 
Attorney  for  Plaintiff. 

Whatever  the  grounds  of  disqualification  are,  they  should  be 
presented  to  the  court  in  limine,  since  if  such  is  not  done,  the 
party  would  lose  the  right  to  object  on  such  ground. 

SEC.  19.  WHEN  THE  JUDGE  is  DISQUALIFIED.  "When  from 
any  cause  the  judge  of  the  superior  court  is  disqualified  from 
presiding,  he  shall  procure  the  services  of  a  judge  of  another 
circuit  to  try  the  said  cause,  if  he  has  to  appoint  an  adjourned 
term  for  that  purpose."  Code,  §4855. 

SEC.  20.  JUDGE  PRO  HAG  \7icE.  "When,  fromvany  cause, 
the  judge  of  the  superior  court  or  any  city  court  is  disqualified 
from  presiding  in  any  civil  case,  and  has  failed  to  procure  the 
services  of  a  judge  to  try  said  cause,  then  the  parties  litigant, 
by  consent,  may  select  any  attorney  of  this  State  to  try  said 
case,  and  the  attorney  so  selected,  when  the  consent  is  entered 
on  the  minutes,  shall  exercise  all  the  functions  of  a  judge  in 
-that  case."  Code,  §4856. 

SEC.  21.  IMPEACHMENT.  "If  any  judge  does  not  comply 
with  the  provisions  of  section  4855  within  a  reasonable  time, 


8  DISQUALIFICATION  OF  JUDGES 

when  it  is  in  his  power  to  do  so,  it  is  a  ground  of  impeach- 
ment," Code,  §4857. 

SEC.  22.  JUDGE  APPOINTED  BY  CLERK,  WHEN.  "In  all 
cases  mentioned  in  the  preceding  sections,  when  the  case  or 
cases  are  reached  in  their  order  on  the  dockets,  without  an  agree- 
ment by  the  parties,  then  it  shall  be  the  duty  of  the  clerk  of  the 
superior  court,  or  in  his  absence  the  deputy  clerk,  to  select  some 
compjetent  attorney  practicing  in  that  court,  who  shall  likewise 
have  authority  and  preside  in  said  case  as  aforesaid."  Code, 
§4858. 

SEC.  23.     FORMS  OF  ORDERS  APPOINTING  JUDGE  PRO  HAC 
VICE. 
WILLIAM  JONES     ")  SUIT  FOR  DAMAGES. 

vs.  >  IN SUPERIOR  COURT. 

WILLIAM  SMITH.    ) TERM,  19 

In  the  above  stated  case,  it  having  been  determined  by  the 

Hon ,  Judge  of  the  Superior  Court  of 

County,  that  he  is  disqualified  therein  by  reason  of  the  fact  that 
he  is  related  within  the  fourth  degree  of  consanguinity  to  the 
plaintiff;  it  is  ordered  that  he  be,  and  he  is,  hereby  disqualified 
therein,  and  counsel  for  plaintiff  and  defendant  having  agreed 
upon  Richard  Roe,  an  attorney  practicing  in  this  court,  to  pre- 
side as  Judge.  Pro  Hac  Vice  in  said  case,  it  is  further  ordered, 
considered  and  adjudged  that  he  be,  and  he  is,  hereby  appointed 
as  said  Judge  Pro  Hac  Vice  in  said  case  with  the  powers  of  the 
Judge  to  hear,  determine  and  dispose  of  this  case. 

Judge  Superior  Court,   County. 

WILLIAM  JONES     1  SUIT  FOR  DAMAGES. 

vs.  VlN SUPERIOR  COURT. 

WILLIAM  SMITH.     ) TERM,  19 

In  the  above  stated  case  it  having  been  made  to  appear  that 

the  lion ,  Judge  of  the  Superior  Court  of 

County,  is  disqualified  to  preside  in  said  case  by  reason  of  the 
fact  that  he  is  related  within  the  fourth  degree  of  consanguinity 
to  the  plaintiff  therein,  it  is  ordered  and  determined  that  he  is 
disqualified  to  hear  and  determine  said  case,  and  the  parties 
having  failed  to  agree  upon  an  attorney  to  preside  therein  as 
Judge  Pro  Hac  Vice,  and  said  case  having  been  reached  in  its 
order  upon  the  docket,  it  is  ordered  that  the  clerk  of  the  Superior 


DISQUALIFICATION  OF  JUDGES  9 

Court  appoint  some  competent  attorney  who  practices  in  this 
court  to  preside  in  said  case,  with  the  authority  of  the  Judge  to 
try  the  same. 

Judge  Superior  Court County. 

WILLIAM  JONES     ")  SUIT  FOR  DAMAGES. 

vs.  V!N SUPERIOR  COURT. 

WILLIAM  SMITH.    ) TERM,  19 

In  conformity  with  the  order  of  the  Hon ,  Judge 

of  the  Superior  Court  of County,  who  has  held 

himself  disqualified  to  try  the  above  stated  case,  and  the  said 
case  having  been  reached  in  its  order  upon  the  docket,  and  coun- 
sel in  said  case  having  failed  to  agree  upon  a  Judge  Pro  Hac 
Vice  to  preside  in  said  case  and  try  same,  and  it  being  my  duty 
to  appoint  a  competent  attorney  to  preside  therein,  I  hereby 
nominate  and  appoint  Richard  Smith,  a  competent  attorney 
practicing  in  this  court,  to  preside  in  this  case,  and  to  hear  and 
determine  same. 

Clerk  Superior  Court County. 

SEC.  24.  INTEREST  OF  ATTORNEY  RELATED  TO  JUDGE.  An 
attorney  whose  contract  with  his  client  provides  that  he  is  to  be 
paid  a  certain  sum  in  all  events,  and  a  larger  sum  if  the  attor- 
ney's client  is  successful,  has  no  such  interest  in  the  subject- 
matter  of  the  litigation  as  to  disqualify  the  judge,  who  is  a 
brother  of  the  attorney,  from  presiding  in  the  cause.  91 
S.  E.  37. 

"In  a  claim  case,  if  one  of  the  counsel  for  the  plaintiff  in 
fi.  fa.  has  a  contingent  fee  and  is  related  to  the  presiding  judge 
within  the  fourth  degree  of  consanguinity,  this  raises  a  dis- 
qualification on  the  part  of  the  judge  to  preside  in  the  case. 
Roberts  vs.  Roberts,  115/259  (41  S.  E.  616,  90  Am.  St.  R. 
108)  ;  Short  vs.  Mathis,  101/287  (28  S.  E.  918)."  141/407 
(1)  (81  S.  E.  115). 

SEC.  25.  RELATIONSHIP  TO  PERSON  INTERESTED  IN  RESULT 
OF  SUIT.  "Three  persons,  alleging  themselves  to  be  policy- 
holders  and  creditors  under  contracts  issued  by  a  mutual  life 
insurance  company  organized  under  the  laws  of  this  State, 
instituted  an  equitable  action,  for  themselves  and  all  others 
similarly  situated,  against  the  company  to  enjoin  it  from  further 
transaction  of  business,  appoint  a  receiver,  and  marshal  the. 


10  DISQUALIFICATION  OF  JUDGES 

assets  of  the  company.  When  the  petition  was  presented  to  the 
judge,  an  order  was  passed,  ex  parte,  appointing  a  temporary 
receiver,  and  a  rule  issued  directing  the  defendant  to  show 
cause  at  a  certain  time  and  place  why  the  prayers  of  the  petition 
should  not  be  granted.  The  ground  for  equitable  relief  was 
alleged  insolvency  of  the  company  and  improper  administration 
of  its  affairs.  On  the  interlocutory  hearing  the  defendant  moved 
that  the  judge  recuse  himself  on  the  ground  of  his  relationship 
to  three  separate  persons  alleged  to  be  interested  in  the  result 
of  the  suit.  It  appeared  that  Mrs.  Best,  one  of  the  persons 
referred  to,  was  related  to  the  judge  by  affinity  within  the  degree 
prohibited  by  law,  and  that  the  interest  which  she  had  was  that 
resulting  from  the  fact  that  she  was  the  beneficiary  named  in  a 
policy  issued  by  the  company  on  the  life  of  her  husband,  which 
was  of  force  at  the  date  of  the  application  for  a  receiver  and  at 
the  time  of  the  trial.  Held : 

"1.  The  interest  of  the  beneficiary  above  named  was  a  pres- 
ent pecuniary  interest  within  the  contemplation  of  section  4642 
of  the  Civil  Code  of  1910,  and  was  so  involved  in  the  present 
litigation  as  to  render  the  judge  disqualified  from  presiding. 
It  was  erroneous  to  hold  to  the  contrary. 

"2.  The  judge  being  disqualified  upon  this  ground,  it  is  un: 
necessary  to  deal  with  the  subject  of  disqualification  by  reason 
of  his  alleged  relationship  to  other  persons,  and  no  ruling  is 
made  with  respect  to  his  disqualification  based  on  his  relation 
to  them. 

"3.  The  judge  being  disqualified,  all  that  was  done  upon 
the  interlocutory  hearing  of  the  case  was  entirely  nugatory,  and 
it  is  unnecessary  to  pass  upon  the  questions  raised  upon  the 
rulings  and  adjudications  made  pending  the  hearing. 

"4.  The  effect  of  the  ruling  made  in  the  first  headnote  is  to 
remand  the  case  and  vacate  the  order  granted  at  the  interlocu- 
tory hearing."  142/765  (83  S.  E.  656). 

SEC.  26.  DISQUALIFICATION  OF  JUDGE,  WAIVER,  ETC.  The 
headnotes  in  the  case  of  Shuford,  executrix  vs.  Shuford  et  al., 
141/407  (81  S.  E.  115),  are. as  follows: 

"1.  In  a  claim  case,  if  one  of  the  counsel  for  the  plaintiff  in 
fi.  fa.  has  a  contingent  fee  and  is  related  to  the  presiding  judge 
within  the  fourth  degree  of  consanguinity,  this  raises  a  dis- 
qualification on  the  part  of  the  judge  to  preside  in  the  case. 
Roberts  vs.  Eoberts,  115  Ga.  259  (41  S.  E.  616,  90  Am.  St.  E. 
108)  ;  Short  vs.  Mathis,  101  Ga.  287  (28  S.  E.  918). 


DISQUALIFICATION  OF  JUDGES  11 

"2.  Such  disqualification  can  be  urged  on  behalf  of  either 
party  in  the  case,  and  the  judge  should  not  preside  over  objec- 
tion coining  from  either  side,  duly  made. 

"3.  Disqualification  of  a  presiding  judge  on  account  of 
relationship  to  a  party  or  to  one  of  the  attorneys  who  has  a 
contingent  fee  in  the  case  may  be  waived,  expressly  or  impliedly. 
A  party  will  not  be  permitted,  with  knowledge  of  such  disquali- 
fication, to  try  his  case  before  a  judge  so  disqualified,  take  the 
chance  of  winning  his  suit,  and  then  for  the  first  time  raise  the 
question  of  disqualification.  If  counsel  know  of  such  disqualifi- 
cation, he  should  make  the  point  in  limine.  Civil  Code,  Sect. 
4642 ;  Shope  vs.  State,  106  Ga.  226  (32  S.  E.  140)  ;  Tindall  vs. 
Nisbet,  133  Ga.  114,  1132,  (39  S.  E.  450,  55  L.  K.  A.  225) ; 
Hadden  vs.  Thompson,  118  Ga.  207  (2),  208  (44  S.  E.  1001) ; 
Brown  vs.  Holland,  111  Ga.  817  (35  S.  E.  643). 

"4.  That  the  presiding  judge  on  Monday  morning  called 
the  cases  and  set  them  for  trial  during  the  week,  announcing 
also  that  cases  in  which  he  was  disqualified  would  be  tried  at 
a  special  term  to  be  held  at  a  later  date,  and  -that  this  case  was 
called  and  set  down  for  trial  on  Thursday,  without  any  sug- 
gestion of  disqualification  being  then  made,  was  not  alone  suffi- 
cient to  operate  as  a  waiver  of  such  disqualification. 

"(a)  There  was  no  affirmative  action  taken  by  a  party  to 
the  case  or  by  counsel,  at  the  time  when  the  case  was  set  down 
for  trial,  which  amounted  to  a  waiver  of  disqualification.  Espe- 
cially is  this  true  in  view  of  the  fact  that  different  code  sections 
provide  more  than  one  way  in  which  a  judge  or  judge  pro  hac 
vice  may  be  obtained  for  the  trial  of  a  case  in  which  the  regular 
presiding  judge  of  the  circuit  is  disqualified.  Civil  Code, 
§§4855-4858. 

"5.  If  the  making  of  a  motion  for  a  continuance  on  the  day 
when  the  case  was  set  for  trial,  and  before  it  was  reached  in  its 
order,  by  counsel  for  the  plaintiff  in  fi.  fa.,  with  knowledge  of 
the  disqualification  of  the  presiding  judge,  and  the  overruling 
of  such  motion  would  otherwise  have  operated  as  a  waiver  of 
such  disqualification,  yet,  where  it  then  appeared  that  the 
plaintiff  in  fi.  fa.  was  dead,  and  no  party  had  been  made  in  his 
stead,  so  that  in  fact  there  was  no  plaintiff  in  fi.  fa.  before  the 
court  against  whom  a  binding  ruling  or  adjudication  could  be 
made,  the  making  of  the  motion  for  a  continuance  and  its  over- 
ruling in  such  circumstances  would  not  operate  as  a  valid  pro- 


12  DISQUALIFICATION  OF  JUDGES 

ceeding  and  adjudication  in  the  cause,  or  prevent  counsel  from 
then  raising  the  point  of  the  disqualification  of  the  judge.  Ray 
vs.  Anderson,  114  Ga.  975  (41  S.  E.  60). 

"6.  After  the  motion  for  a  continuance,  made  as  indicated 
in  the -preceding  headnote,  had  been  overruled,  if  the  disqualifi- 
cation of  the  presiding  judge  was  urged,  before  further  steps 
were  taken  in  the  case,  the  point  should  have  been  sustained. 

"7.  After  the  judge  had  overruled  the  objection  to  his  pre- 
siding on  the  ground  of  his  disqualification  and  ordered  the  case 
to  proceed  to  trial,  the  fact  that  counsel  raising  the  objection, 
subject  thereto,  suggested  of  record  the  death  of  the  plaintiff  in 
fi.  fa.,  and  moved  that  his  executrix  and  a  person  claiming  to 
hold  a  transfer  of  the  judgment  and  execution  be  made  parties 
plaintiff,  did  not  operate  as  a  waiver  of  the  disqualification. 

"8.  Where  under  such  circumstances  the  executrix  of  the 
plaintiff  in  fi.  fa.  was  made  a  party,  and  the  objection  to  the 
judge's  presiding  on  account  of  his  disqualification  was  again 
at  once  raised,  it  was  error  to  refuse  to  entertain  it  and  allow 
any  showing  to  be  made  in  support  thereof. 

"9.  Inasmuch  as  the  presiding  judge  was  disqualified  to 
try  the  case  or  to  pass  orders  therein,  and  under  the  facts  stated 
in  the  preceding  headnotes  his  disqualification  was  not  waived, 
the  trial  thereafter  went  for  naught.  His  action  in  the  premises 
should  be  set  aside  and  the  case  reinstated  as  it  stood  before  he 
made  any  ruling  in  regard  to  it. 

"10.  Since  the  ruling  complained  of  in  the  cross-bill  of 
exceptions,  was  void  on  account  of  the  disqualification  of  the 
judge,  it  is  unnecessary  to  rule  upon  the  merits  of  the  case." 

SEC.  27.  DISQUALIFICATION  OF  NOTARIES  PUBLIC.  From 
the  case  of  Southern  Iron  and  Equipment  Company  vs.  Voyles, 
138/258  (75  S.  E.  248),  we  have: 

"1.  A  notary  public  is  disqualified  from  attesting  a  deed 
or  bill  of  sale,  so  as  to  entitle  it  to  record,  if  he  is  pecuniarily 
or  beneficially  interested  in  the  transaction. 

"2.  A  stockholder  of  a  corporation  bears  such  financial  rela- 
tion to  it  that  he  is  disqualified,  on  account  of  interest,  from 
attesting  as  a  notary  a  deed  or  bill  of  sale  to  which  the  corpora- 
tion is  a  party. 

"3.  Where  a  corporation  sells  property  and  takes  from  the 
vendee  a  conditional  bill  of  sale,  reserving  title  in  the  vendor 
until  the  purchase-price  is  paid,  and  the  vendee's  signature  is 
attested  by  a  notary  public  who  is  a  stockholder  of  the  corpora- 


QUALIFICATION  OF  JURORS.  13 

tion,  and  where  the  conditional  bill  of  sale  is  recorded,  in  a 
contest  between  the  conditional  bill  of  sale  and  a  junior  lien 
such  record  will  not  give  the  conditional  bill  of  sale  priority 
over  the  younger  lien,  if  the  disqualification  of  the  notary  was 
known  to  the  official  of  the  corporation  conducting  the  transac- 
tion, although  such  disqualification  may  not  appear  on  the  face 
of  the  paper. 

"4.  A  junior  attachment  levied  on  the  property  embraced 
in  the  conditional  sale  thus  illegally  recorded,  but  founded  on 
a  debt  antecedent  to  the  conditional  bill  of  sale,  has  priority  of 
lien  over  the  conditional  bill  of  sale." 


CHAPTER  II 

QUALIFICATION  OF  JURORS. 

SECTION  28.  RIGHT  OF  PARTY  TO  IMPARTIAL  JURY.  "In 
civil  as  well  as  criminal  cases  jurors  may  be  placed  upon  their 
voir  dire  and  examined  as  to  their  impartiality,  but  in  such  ex- 
amination the  questions  should  be  limited  to  the  partiality  or 
impartiality  of  the  jurors  in  reference  to  the  particular  case 
and  the  parties  thereto."  122/338  (1)  (50  S.  E.  142). 

"In  a  civil  cause  it  is  good  cause  of  challenge  that  a  juror 
has  expressed  an  opinion  as  to  which  party  ought  to  prevail,  or 
that  he  has  a  wish  or  desire  as  to  which  should  succeed."  Penal 
Code,  §859. 

"A  juror  related  by  consanguinity  or  affinity  to  either  party 
to  a  cause  within  the  ninth  degree  is  disqualified  from  sitting 
in  the  case.  This  was  expressly  decided  in  Ledford  vs.  State, 
75  Ga.  857,  and  our  examination  has  failed  to  discover  any 
ruling  of  this  State  to  the  contrary."  2  App.  574,  575  (59 
S.  E.  311). 

SEC.  29.  WHAT  DEGREE  OF  RELATIONSHIP  DISQUALIFIES 
JURORS.  The  rule  as  to  the  disqualification  of  jurors  is  differ- 
ent from  that  of  judge.  The  disqualification  of  a  judge  is  meas- 
ured by  the  Canon  law,  while  the  disqualification  of  a  juror  is 
measured  by  the  civil  law.  Where  a  juror  is  related  to  either 
party  to  a  cause  within  the  ninth  degree  of  relationship  under 
the  civil  law,  he  is  disqualified  from  sitting  in  the  case.  This 
can  be  illustrated  by  the  following  diagram  showing  how  the 
relationship  is  calculated.  Under  the  civil  law,  you  place  the 


14  QUALIFICATION  OF  JURORS 

party  and  juror  in  his  proper  place  in  the  diagram  and  then 
from  one  of  them  count  up  to  the  common  ancestor  and  then 
on  the  other  side  down  to  the  other  party  and  this  will  give  the 
relationship.  Take  the  diagram  next  hereinafter  and  take 
Charles  Doe  and  Peter  Doe.  You  begin  at  Charles  Doe  and 
count  up  each  degree  to  Adam  Doe  and  then  to  Adam  Doe  from 
Peter  Doe,  and  you  find  that  the  relationship  is  within  the  sixth 
degree.  If  you  are  counting  under  the  Canon  law,  you  would 
count  from  the  one  most  remote  up  to  the  common  ancestor  and 
this  would  be  the  degree  of  relationship,  and  in  this  particular 
case  Charles  Doe  would  be  related  to  Peter  Doe  within  the 
fourth  degree,  since  he  is  four  degrees  removed  from  the  common 
ancestor.  This  will  appear  from  the  diagram  on  the  opposite 
page. 

SEC.  30.  A  PAKTY  HAS  A  RIGHT  TO  PURGE  THE  JURY.  This 
being  a  right  that  is  fixed  by  law,  either  party  may  claim  it 
and  the  first  thing  to  be  done  is  for  the  judge  to  state  to  the 
jury  the  names  of  the  parties  to  the  case  and  a  general  outline 
of  the  case  with  the  issues  raised  and  then  the  jury  should  be 
given  a  preliminary  oath  which  may  be  in  the  following  form : 

"You  shall  true  answers  make  to  such  questions  as  may  be 
asked  you  by  the  court  or  its  authority,  touching  your  com- 
petency as  jurors,  so  help  you  God." 

The  questions  to  be  propounded  are  largely  within  the  dis- 
cretion of  the  court.  They  may  be  extended  or  not  as  he  deems 
proper  and  some  or  all  of  the  following  might  be  asked.  These 
questions  may  be  propounded  to  the  jury  as  a  body  or  they  may 
be  called  up  one  by  one  and  asked  the  questions.  This  is  a 
matter  entirely  within  the  discretion  of  the  judge.  The  ques- 
tions may  be  as  follows: 

"Is  your  mind  perfectly  impartial  between  the  plaintiff  and 
defendant  in  this  case?" 

"Have  you  any  prejudice  or  bias  resting  on  your  mind  either 
for  or  against  the  plaintiff  or  defendant  ?" 

"Have  you  formed  or  expressed  an  opinion  as  to  which  party 
to  the  cause  ought  to  prevail  ?" 

"Have  you  a  wish  or  desire  as  to  which  party  to  the  cause 
should  succeed  ?" 

SEC.  31.  EACH  PARTY  HAS  THE  RIGHT  TO  AN  IMPARTIAL 
-I  i  i;y.  "In  civil  cases  and  cases  of  misdemeanors  in  the  superior 
court,  each  party  may  demand  a  full  panel  to  twenty-four  com- 
petent and  impartial  jurors  from  which  to  strike  a  jury,  and 
when  one  or  more  of  the  regular  panel  of  traverse  jurors  is 


ADAM  DOE 


JOHN  DOE 
JON  OF  ADAM  DOE 


PETER  DOE 
iON  OF  JOHN  DOE 


COMMON  ANCESTOR 


HENRY  DOE 
SON  OF  ADAM  DOE 


MARK  DOE 
SON  OF  HENRY  DOE 


CHARLES  DOE 
SON  OF_  MARK  DOE 


16  QUALIFICATION  OK  JURORS 

absent,  or  for  any  reason  disqualified,  the  presiding  judge,  at 
the  request  of  counsel  for  either  party,  shall  cause  the  panel  to 
be  filled  by  tales  jurors  to  the  number  of  twenty-four  before 
requiring  the  parties,  or  their  counsel,  to  strike  a  jury."  Penal 
Code,  §858. 

SEC.  32.  MAKING  UP  PANELS  AND  STRIKING  JURY.  "The 
judges  of  the  superior  courts,  at  each  term,  shall  from  the  petit 
jurors,  have  made  up  two  panels  of  twelve  jurors  each,  which 
shall  be  known  and  distinguished  as  panels  'number  one'  and 
'number  two' ;  all  cases  in  said  courts  shall  be  tried  by  one  or 
the  other  of  said  panels,  if  the  parties  can  agree  upon  a  panel. 
If  the  parties  can  not  agree  upon  a  panel,  the  clerk  shall  furnish 
the  parties  or  their  attorneys  a  list  of  both  panels,  from  which 
the  parties  or  their  attorneys  may  strike  alternately  until  there 
shall  be  but  twelve  left,  which  shall  constitute  the  jury  to  try 
the  case.  In  all  cases  the  plaintiff  shall  have  the  first  strike." 
Penal  Code,  §857. 

SEC.  33.  JURORS  SIXTY  YEARS  OF  AGE  NOT  DISQUALIFIED. 
That  a  person  is  over  sixty  years  of  age  does  not  disqualify  him 
to  serve  as  a  grand  juror,  but  he  has  a  right  to  claim  his  age 
as  a  privilege.  75/747.  That  a  juror  is  over  sixty  years  of 
age,  does  not  disqualify  him  in  a  civil  case.  4  App.  771  (62 
S.  E.  533).  The  fact  that  a  juror,  in  a  criminal  case,  is  over 
sixty  years  of  age  is  not  a  ground  of  challenge  for  cause.  141/ 
82  (80  S.  E.  850). 

SEC.  34.  RELATIONSHIP  BY  AFFINITY.  Marriage  relates 
the  husband  to  the  wife's  kindred,  but  does  not  relate  any  of 
his  kindred  to  hers,  consequently,  the  third  or  fourth  cousin  of 
the  husband  of  the  decedent's  sister  was  not,  for  that  reason, 
incompetent  as  a  juror.  89/527  (15  S.  E.  748)  ;  139/719  (78 
S.  E.  181) ;  141/510  (81  S.  E.  444).  The  same  rule  applies 
to  a  brother  or  son-in-law  of  a  stockholder  in  a  railroad  company 
when  the  railroad  company  is  a  party  to  the  suit,  73/713.  A 
person  who  is  related  by  affinity  to  the  wife  of  the  propounder 
of  a  will  is  not  a  qualified  juror.  72/80.  Where  a  witness  is 
directly  interested  in  the  result  of  a  suit,  his  half-brother  is  not 
a  competent  juror.  71/818.  Because  the  step-daughter  of  one 
of  the  jurors  married  the  brother  of  one  of  the  parties  to  the 
case  will  not  disqualify  the  juror.  9/513.  A  juror  is  not  dis- 
qualified by  reason  of  the  fact  that  he  is  a  brother  of  the  wife 
of  the  defendant's  brother,  who  actively  assisted  in  the  defense 
of  the  divorce  suit.  119/239  (46  S.  E.  106).  The  nephew 


QUALIFICATION  OF  JURORS  1-7 

of  the  husband  of  an  aunt  of  a  party  who  is  plaintiff  in  a  suit 
arising  out  of  a  somewhat  similar  transaction  as  that  which 
brought  about  the  suit  on  trial,  is  not  disqualified  as  a  juror. 
139/556  (77  S.  E.  790).  That  a  first  cousin  of  a  juror  married 
a  sister  of  the  plaintiff,  did  not  make  the  juror  kin  by  affinity 
to  the  plaintiff  so  as  to  disqualify  the  juror.  139/556  (77 
S.  E.  790)  ;  142/146  (82  S.  E.  562).  A  kinsman  of  a  brother- 
in-law  of  a  party  is  not  akin  to  the  party  and  therefore  not 
disqualified  to  act  as  a  juror.  91/513  (18  S.  E.  315)  ;  142/145 
(82  S.  E.  562)  ;  144/227  (87  S.  E.  277).  A  brother-in-law 
of  a  bankrupt  who  prior  to  his  bankruptcy  has  had  an  interest 
in  the  shares  of  the  corporation,  is  not  a  competent  juror  to 
sit  in  the  case  of  which  that  corporation  is  a  party.  15  App. 
69,  70  (82  S.  E.  588).  A  cousin  of  the  son-in-law  of  the  prin- 
cipal witness  of  the  plaintiff  (a  corporation)  would  not  dis- 
qualify him  as  a  juror.  17  App.  458  (87  S.  E.  698). 

SEC.  35.  JURORS  RELATED  ARE  INCOMPETENT.  When 
jurors  are  so  related  to  the  party  litigant  that  they  are  not 
impartial,  they  should  be  removed  from  the  jury  before  the 
striking  begins.  2  App.  305  (58  S.  E.  538).  Where  a  suit  in 
which  a  corporation  is  engaged  and  the  son  of  one  of  the  stock- 
holders is  upon  the  jury,  and  that  fact  is  not  known  at  the  time 
of  the  trial,  he  is  disqualified,  and  a  new  trial  ought  to  be 
granted.  60/650.  A  juror,  who  is  a  cousin  of  one  of  the 
parties,  is  incompetent  to  sit  on  the  trial  of  a  cause  in  which 
his  kinfolks  are  parties.  47/538.  The  party  who  moves  for  a 
new  trial,  on  the  ground 'that  the  juror  is  related  to  one  of  the 
parties  to  the  case,  must  not  only  allege  what  the  relationship 
is,  but  that  he  had  no  knowledge  of  it  before  the  case  went  to 
trial.  39/660.  The  son  of  the  first  cousin  of  a  party  to  a  suit 
is  not  a  competent  juror.  65/304;  63/165.  The  relationship 
which  disqualifies  a  party  to  act  as  juror  extends  to  the  ninth 
degree.  75/857.  The  "ninth  degree"  referred  to  in  the  75th 
Georgia  is  calculated  according  to  the  civil  law.  115/259,  261 
(41  S.  E.  616);  2  App.  574,  577  (59  S.  E.  311).  That  one 
of  the  jurors  is  related  to  the  party  who  lost  the  suit,  is  not  a 
good  ground  for  a  new  trial.  104/174  (30  S.  E.  651).  A 
juror  is  not  disqualified  because  of  his  being  brother  of  the 
county  commissioner,  in  a  suit  against  the  county,  when  the 
commissioner  is  not  pecuniarily  interested  in  the  result  of  the 
suit.  123/205  (51  S.  E.  328), 


18  CONTINUANCES 

SEC.  36.  OBJECTION  PROPER  DEFECTUM  NOT  GOOD  AFTER 
VERDICT.  "That  a  juror's  name  is  not  on  the  jury  list  or  in 
the  jury  box  is  not  cause  for  a  new  trial,  when  the  point  is 
raised  for  the  first  time  after  verdict.  Being  an  objection 
propter  defectum,  it  should  be  discovered  and  urged  before  ver- 
dict. Somers  vs.  State,  116  Ga.  535  (42  S.  E.  779)  ;  Jordan 
vs.  State,  119  Ga.  443  (46  S.  E.  679)."  138/464  (75  S.  E. 
604).  "While  the  fact  that  the  names  of  some  of  the  jurors 
in  a  justice's  court  did  not  appear  on  the  jury  list  may  have 
been  good  ground  for  challenge  before  the  jury  had  been  im- 
paneled, yet  where  no  objection  was  made  before  the  trial  and 
no  ruling  made  thereon,  it  can  not  be  taken  advantage  of  by 
certiorari  'after  verdict.  Mitchell  vs.  Bradberry,  76  Ga.  15. 
This  objection  is  propter  defectum,  and  comes  too  late  after 
verdict.  Jordan  vs.  State,  119  Ga.  443  (43  S.  E.  679)."  11 
App.  815  (76  S.  E.  391).  That  a  juror  at  the  time  of  the 
trial  was  not  a  resident  of  the  county  in  which  the  trial  took 
place,  is  a  proper  ground  for  objections,  propter  defectum,  and 
must  be  made  before  the  trial.  105/640  (31  S.  E.  557).  The 
question  as  to  whether  a  traverse  juror  who  served  at  the  pre- 
ceding term  is  disqualified  is  one  of  propter  defectum.  131/498 
(62  S.  E.  806) ;  1  App.  518  (57  S.  E.  1021)  ;  125/277  (54 
S.  E.  167).  It  is  not  a  ground  for  a  new  trial,  that  one  of  the 
jurors  had  not  been  a  resident  of  the  county  for  six  months 
before  the  trial  took  place.  57/329.  To  raise  the  question  of 
a  juror  being  unnaturalized  is  one  of  propter  defectum  and 
comes  too  late,  after  a  verdict  in  the  trial  has  been  rendered. 
64/453. 


CHAPTER  III 

CONTINUANCES. 
(See  forms,  Part  II,  pages  374,  375.) 

SECTION  37.  BUT  ONE  CONTINUANCE  AT  COMMON  LAW. 
"No  trial  in  any  civil  cause  shall  be  had  at  the  first  term  (except 
expressly  provided  for  by  law),  and  no  cause  whatever,  depend- 
ing in  any  of  the  courts  of  this  State,  shall  be  continued  more 
than  one  term  at  common  law,  at  the  instance  of  the  same  party, 
for  any  cause  whatever."  Code,  §5710. 


CONTINUANCES  19 

SEC.  38.  ATTENDANCE  ON  THE  GENERAL  ASSEMBLY  BY 
PARTY  OR  COUNSEL.  "It  shall  be  the  duty  of  the  judge  of  any 
court  of  this  State  to  continue,  on  or  without  motion,  any  case 
in  such  court  when  any  party  thereto  or  his  leading  attorney 
shall,  when  the  case  is  reached,  be  absent  from  the  court  by 
reason  of  his  attendance  as  a  legislator  on  the  General  Assembly, 
unless  the  party  in  such  absence  of  his  leading  attorney  or  such 
leading  attorney  in  such  absence  of  such  party  shall,  on  the  call 
of  the  case,  announce  ready  for  trial."  Code,  §5711. 

SEC.  39.  BY  WITNESSES.  "Any  person  summoned  to  serve 
as  a  witness  in  any  case  in  the  courts  of  this  State  shall  be 
excused  by  the  judge  from  attendance  on  such  courts  during  his 
absence  from  the  court  by  reason  of  his  attendance  as  a  legis- 
lator upon  the  General  Assembly;  and  in  all  criminal  cases  in 
the  courts  of  this  State,  it  shall  be  the  duty  of  the  presiding 
judge,  on  motion  of  either  the  State  or  defendant,  to  continue 
such  case  when  it  shall  appear  that  a  material  witness  is  absent 
from  the  court  by  reason  of  his  attendance  upon  the  General 
Assembly;  and  in  all  civil  cases  in  the  courts  of  this  State,  it 
shall  be  the  right  of  either  party  thereto  to  have  taken  the  inter- 
rogatories, as  provided  by  law,  of  any  person  desired  to  be  used 
as  a  witness  in  such  case,  and  who  is  a  member  of  the  General 
Assembly,  when  the  session  of  the  General  Assembly  conflicts 
with  the  session  of  the  court  in  which  such  case  is  to  be  tried : 
Provided,  that  the  provisions  of  this  and  the  preceding  section 
shall  not  apply  to  the  Supreme  Court  of  this  State."  Code, 
§5712. 

SEC.  40.  AMENDING  PARTY,  WHEN  ENTITLED  TO  CONTINU- 
ANCE. "The  party  amending  pleadings  or  other  proceedings  in 
any  of  said  courts  shall  not  be  entitled  to  delay  or  continuance 
on  account  of  such  amendment,  except  by  leave  of  the  court  to 
enable  him  to  make  such  amendment."  Code,  §5713. 

SEC.  41.  CONTINUANCE  CHARGED  TO  AMENDING  PARTY, 
WHEN.  "When  any  amendment  shall  be  made  to  the  pleadings 
or  other  proceedings  in  the  cause,  if  the  opposite  party  will 
make  oath,  or  his  counsel  state  in  his  place,  that  he  is  surprised 
by  such  amendment,  and  that  he  is  less  prepared  for  trial,  and 
how,  than  he  would  have  been  if  such  amendment  had  not  been 
made,  and  that  such  surprise  is  not  claimed  for  the  purpose  of 
delay,  the  case  may  be  continued  in  the  discretion  of  the  judge, 
and  charged  to  the  amending  party."  Code,  §5714,  , 


20  CONTINUANCES 

SEC.  42.  CONTINUANCE  FOE  ABSENCE  OF  WITNESSES.  "In 
all  applications  for  continuances  upon  the  ground  of  the  absence 
of  a  witness,  it  must  be  shown  to  the  court  that  the  witness  is 
absent;  that  he  has  been  subpoenaed;  that  he  resides  in  the 
county  where  the  case  is  pending ;  that  his  testimony  is  material ; 
that  such  witness  is  not  absent  by  the  permission,  directly  or 
indirectly,  of  such  applicant ;  that  he  expects  he  will  be  able  to 
procure  the  testimony  of  such  witness  at  the  next  term  of  the 
court;  and  that  such  application  is  not  made  for  the  purpose 
of  delay,  but  to  enable  the  party  to  procure  the  testimony  of 
such  absent  witness;  and  must  state  the  facts  expected  to  be 
proved  by  such  absent  witness."  Code,  §5715. 

SEC.  43.  ADMISSION  OF  FACTS.  "No  continuance  shall  be 
allowed  in  any  court  on  account  of  the  absence  of  a  witness,  or 
for  the  purpose  of  procuring  testimony,  when  the  opposite  party 
is  willing  to  admit,  and  does  not  contest  the  truth  of,  the  facts 
expected  to  be  proved ;  and  the  court  shall  order  such  admission 
to  be  reduced  to  writing."  Code,  §5716. 

SEC.  44.  WHEN  ABSENCE  OF  A  PARTY  Is  CAUSE  FOR  CON- 
TINUANCE. "If  either  party  shall  be  providentially  prevented 
from  attending  at  the  trial  of  any  cause,  and  the  counsel  of  such 
absent  party  will  state  in  his  place  that  he  can  not  go  safely  to 
trial  without  the  presence  of  such  absent  party,  such  cause  shall 
be  continued,  provided  his  continuances  are  not  exhausted." 
Code,  §5717. 

SEC.  45.  CONTINUANCE  FOR  ABSENCE  OR  ILLNESS  OF  COUN- 
SEL. "The  illness  or  absence,  from  providential  cause,  of  counsel 
where  there  is  but  one,  or  of  the  leading  counsel  where  there  are 
more  than  one,  shall  be  a  sufficient  ground  for  continuance: 
Provided,  the  party  making  the  application  will  swear  that  he 
can  not  go  safely  to  trial  without  the  services  of  such  absent 
counsel,  and  that  he  expects  his  services  at  the  next  term,  and 
that  said  application  is  not  made  for  delay  only."  Code,  §5718. 

SEC.  46.  WHEN  CASE  Is  NOT  REACHED.  "A  cause  not 
reached  at  the  trial  term  stands  over  as  continued."  Code, 
.§5719. 

SEC.  47.  CONTINUANCE  IN  CASES  SENT  BACK  FROM  THE 
SUPREME  COURT.  "When  any  cause  shall  be  sent  back  to  the 
superior  court  by  the  Supreme  Court,  the  same  shall  be  in 
order  for  trial;  and  if  the  continuances  of  either  party  pro 
exhausted,  the  superior  court  may  grant  one  continuance  to  said 
party,  as  the  ends  of  justice  may  require."  Code,  §5720. 


CONTINUANCES  21 

SEC.  48.  DILIGENCE  REQUIRED.  "In  all  cases,  the  party 
making  an  application  for  a  continuance,  must  show  that  he 
has  used  due  diligence."  Code,  §5721. 

SEC.  49.  CONTINUANCE  FOR  NON-RETURN  OF  INTERROGA- 
TORIES. "When  a  commission  issues  to  examine  a  witness,  it 
not  having  been  returned  shall  be  no  cause  for  a  continuance, 
unless  the  party  seeking  the  continuance  will  make  the  same 
oath  of  the  materiality  of  the  testimony  as  in  the  case  of  an 
absent  witness ;  and  the  party  must  show  due  diligence  in  suing 
out  and  having  the  same  executed."  Code,  §5722. 

SEC.  50.  CONTINUANCE  ON  THE  APPEAL.  "No  appeal  case 
shall  be  continued  more  than  twice  by  the  same  party,  except, 
for  providential  cause,  and  for  which  it  may  be  continued  as 
often  as  justice  may  require."  Code,  §5723. 

SEC.  51.  COUNTER-SHOWING  AND  DISCRETION  OF  THE 
COURT.  "All  applications  for  continuance  are  addressed  to  the 
sound  legal  discretion  of  the  court,  and,  if  not  expressly  pro- 
vided for,  shall  be  granted  or  refused,  as  the  ends  of  justice 
may  require.  And  in  all  cases  in  the  courts  of  the  State,  the 
presiding  judges  may,  in  their  discretion,  admit  a  counter- 
showing  to  a  motion  for  a  continuance,  and,  after  a  hearing, 
may  decide  whether  the  motion  shall  prevail."  Code,  §5724. 

SEC.  52.  No  CONTINUANCE  FOR  TERM,  WHEN.  "No  con- 
tinuance shall  be  granted  in  any  of  the  courts  in  this  State, 
which  have  a  continuous  session  for  thirty  days  or  more,  over 
the  objection  of  the  adverse  party,  where  the  cause  for  the  same 
can  be  obviated  by  a  postponement  to  a  later  day  during  the 
term;  but  it  shall  be  the  duty  of  the  presiding  judge,  whenever 
a  motion  and  a  proper  showing  for  a  continuance  is  made  by 
either  party  at  any  time,  to  set  the  case  down  for  a  later  day 
during  the  same  term,  if  it  shall  be  practicable  thereby  to  avoid 
the  continuance  of  the  case."  Code,  §5725. 

SEC.  53.  PUBLIC  ANNOUNCEMENT  OF  CONTINUANCE  TO  BE 
MADE,  ETC.  "The  judges  of  the  superior,  city,  and  county 
courts  are  required,  upon  the  continuance  of  any  case,  to  enter 
the  date  of  such  continuance  upon  their  dockets  opposite  each 
case,  and  in  open  court  to  make  public  announcement  of  such 
continuance."  Code,  §5726. 

SEC.  54.  No  COSTS  TO  WITNESS  AFTER  CONTINUANCE. 
"Witnesses  in  making  claims  or  proofs  of  claims  for  costs  for 
attendance  must  give  the  date  they  attended,  and  shall  not 


22  CONTINUANCES 

charge  or  receive  pay  for  any  day  after  the  docket  shows  the 
case  was  continued,  nor  for  any  day  before  the  continuance  on 
which  he  did  not  attend."  Code,  §5727. 

SEC.  55.  JUSTICE  COURTS.  "All  continuances  shall  be  from 
term  to  term,  except  when  in  the  discretion  of  the  court  it  is 
better  to  continue  to  a  day  or  from  day  to  day  in  the  term  for 
which  the  case  was  assigned  for  trial."  Code,  §4698. 

"If  either  party  is  not  ready  for  trial  at  the  time  and  place 
designated  in  the  summons,  the  justice  or  commissioned  notary 
public  may  continue  the  case  upon  a  sufficient  legal  showing. 
But  neither  party  shall  be  entitled  to  more  than  one  continuance, 
unless  it  be  from  providential  cause."  Code,  §4736. 

SEC.  56.  THE  RULES  AS  TO  CONTINUANCE.  Cases  are  car- 
ried to  the  higher  courts  where  continuances  are  refused,  and 
we  have  decisions  upon  these.  In  those  cases  where  the  con- 
tinuance is  granted,  there  can  not  be  any  decision  upon  the 
granting  of  a  continuance  by  the  higher  courts,  for  the  reason 
that  the  case  is  still  pending  in  the  court  below  and  can  not  be 
carried  there.  For  this  reason,  in  the  decided  cases,  it  is  only 
incidentally  as  a  matter  of  history  that  a  reference  is  had  to 
cases  that  have  been  continued  in  the  decisions  in  the  upper 
court.  Unless  a  showing  for  continuance  comes  squarely  within 
some  provision  providing  for  a  continuance,  the  matter  of  con- 
tinuance is  within  the  discretion  of  the  presiding  judge.  It  is 
a  fact  that  lawyers  had  better  make  their  arrangements  to  try 
cases  rather  than  to  continue  them.  The  law  favors  the  diligent 
and  where  a  party  has  been  diligent  and  has  done  all  that  he 
could  to  have  a  case  ready  for  trial,  a  fair  judge  moved  with 
the  desire  to  have  a  case  tried  on  its  merits,  will,  as  a  general 
proposition,  do  about  the  right  thing  under  the  circumstances 
and  the  matter  not  only  is  but  should  be  left  to  his  discretion. 

SEC.  57.  DISCRETION  OF  COURT.  Application  for  continu- 
ance and  postponement  of  cases  are  addressed  to  the  sound  legal 
discretion  of  the  court ;  and  unless  the  facts  show  that  the  dis- 
cretion exercised  in  a  particular  case  was  manifestly  and  legally 
unsound,  it  will  not  be  disturbed.  Code,  §5724. 

SEC.  58.  DILIGENCE.  "Even  if  in  a  case  at  law  the  judge 
has  a  discretion  to  continue  a  case  more  than  one  time  for  any 
cause  at  the  instance  of  the  same  party,  it  would  have  been  an 
abuse  of  discretion  to  grant  a  continuance  in  the  present  case; 


CONTINUANCES  23 

and  it  was  therefore  error  to  sustain  a  ground  of  a  motion  for 
a  new  trial  assigning  error  upon  the  refusal  to  grant  a  con- 
tinuance. 

"The  rule  laid  down  in  the  Code  with  reference  to  a  con- 
tinuance for  the  non-return  of  interrogatories  is  as  follows: 
'When  a  commission  issues  to  examine  a  witness,  it  not  having 
been  returned  shall  be  no  cause  for  a  continuance,  unless  the 
party  seeking  the  continuance  will  make  the  same  oath  of  the 
materiality  of  the  testimony  as  in  the  case  of  an  absent  witness, 
and  the  party  must  show  due  diligence  in  suing  out  and  having 
the  same  executed.'  Civil  Code,  §5136.  The  showing  in  the 
-present  case  seems  to  comply  with  the  requirements  of  the  law, 
except  as  to  the  diligence  exercised  by  the  defendant  in  securing 
the  return  of  the  interrogatories.  We  think  it  was  fatally  lack- 
ing at  this  point.  It  was  certainly  not  an  act  of  diligence  to 
rely  upon  the  opposite  party  to  pay  the  fees  of  the  commis- 
sioners, even  though  such  commissioners  were  nominated  by 
him.  The  law  gives  the  right  to  the  opposite  party  to  select 
two  commissioners,  one  of  whom  must  act  in  the  execution  of 
the  interrogatories;  but  we  know  of  no  law  which  authorizes 
the  party  suing  out  the  interrogatories  taken  out  in  his  own 
behalf.  Even  if  the  judge  has  any  discretion  to  grant  a  second 
continuance  in  a  case  at  law,  at  the  instance  of  the  same  party 
(Civil  Code,  §5126),  we  think  that  the  showing  in  this  case  was 
insufficient,  and  that  the  granting  of  a  new  trial,  which  was  in 
effect  the  granting  of  a  second  continuance,  was  an  abuse  of 
discretion."  123/110,  112  (51  S.  E.  33). 

"There  was  no  abuse  of  discretion  in  refusing  a  continuance 
for  the  purpose  of  enabling  the  defendant  to  procure  the  testi- 
mony of  witnesses  residing  in  Boston,  Massachusetts,  the  show- 
ing for  continuance  indicating  laches,  since  there  was  no  effort 
to  procure  this  testimony  until  eight  days  before  the  case  was 
called  for  trial,  and  no  reason  was  shown  for  this  delay."  11 
A  pp.  G45  (75  S.  E.  1059). 

SEC.  59.  ILLNESS  OF  PARTY.  "The  grant  or  refusal  of  a 
continuance  is  a  matter  addressed  to  the  sound  discretion  of 
the  presiding  judge ;  and  his  decision  will  not  be  reversed,  unless 
such  discretion  has  been  abused. 

"Under  the  facts  of  this  case,  there  was  no  error  in  refusing 
a  continuance. 

"The  grant  or  refusal  of  a  continuance  is  a  matter  as  to 
which  the  presiding  judge  must  exercise  a  sound  discretion ; 
and  his  decision  will  not  bo  reversed,  unless  such  discretion  has 


24  CONTINUANCES 

been  abused.  It  was  not  so  in  this  case.  The  motion  to  con- 
tinue was  based  on  the  ground  that  J.  L.  Gable,  one  of  the 
defendants,  and  who  was  also  desired  as  a  witness  for  the  other 
two  defendants,  and  had  been  subpoenaed  by  them,  was  sick 
and  unable  to  attend  the  trial.  The  evidence  offered  in  support 
of  the  motion  was  an  unsworn  certificate  of  a  doctor  that  Gable 
was  sick  and  unable  to  attend  the  trial,  and  the  testimony  of 
one  of  the  defendants,  Biles,  that  on  the  morning  of  the  day 
before  the  trial,  J.  L.  Gable  was  sick  in  bed,  that  it  was  ex- 
pected to  prove  by  him  that  J.  E.  Gable  was  of  sound  mind 
when  he  made  the  deed  involved  in  the  controversy,  that  he 
received  value  for  the  land,  and  that  when  it  was  conveyed  by 
J.  L.  Gable  to  Hardy  and  Biles,  they  paid  full  value  therefor, 
and  there  was  no  collusion  on  the  subject.  It  was  stated  that 
J.  L.  Gable  was  not  absent  by  leave  or  consent  of  the  other  two 
defendants,  that  they  expected  to  have  him  present  at  the  next 
term  of  the  court,  that  the  motion  was  not  made  for  delay  only, 
but  for  the  purpose  of  procuring  his  testimony,  and  that  they 
had  no  other  witness  at  court  by  whom  they  could  prove  these 
facts,  and  no  other  witness  as  intimately  and  well  acquainted 
with  J.  E.  Gable  as  J.  L.  Gable  was.  Counsel  for  the  defend- 
ants stated  that  he  could  not  go  safely  to  trial  without  the 
presence  of  the  absent  defendant.  It  appeared,  however,  that 
the  case  was  continued  at  the  preceding  term  of  the  court  on 
account  of  the  absence  of  the  same  defendant  and  witness ;  that 
ho  was  a  practising  physician ;  and  that  no  effort  had  been  made 
to  procure  his  testimony  by  interrogatories.  The  presiding 
judge  had  before  him  the  case,  the  parties,  the  situationj  and 
the  surrounding  and  attendant  circumstances.  He  declined  to 
grant  a  second  continuance  for  the  absence  of  the  same  witness, 
who  was  also  a  party,  and  whose  evidence  could  have  been  taken 
by  interrogatories,  but  was  not  so  taken.  In  this,  we  can  not 
say  that  he  erred.  The  suit  was  commenced  on  August  29, 
1905.  Some  nineteen  months  had  elapsed,  and  at  least  a  part 
of  the  delay  had  been  caused  by  the  same  party  and  witness. 
Civil  Code,  sections  5126,  5138,  5135,  5297  and  subsection  2 ; 
Purge  vs.  Hamilton,  72  Ga.  570  (lOa)  ;  Camp  vs.  Britt,  121 
Ga.  466  (49  S.  E.  296)."  130/689-691  (61  S.  E.  595). 

"That  a  party  was  providentially  prevented  from  attending 
court,  and  that  her  counsel  stated  in  his  place  that  he  could  not 
go  safely  to  trial  without  her  presence,  was  not,  without  more, 
sufficient  to  constrain  the  trial  judge  to  grant  to  such  party  a 
fifth  continuance,  when  it  appeared  that  at  least  three  of  the 


CONTINUANCES  25 

previous  continuances  had  been  predicated  upon  her  absence  on 
account  of  sickness.  Certainly  under  such  circumstances,  the 
question  of  granting  another  continuance  was,  even  under  sec- 
tion 5131  of  the  Civil  Code,  a  matter  within  the  discretion  of 
the  judge.  See,  in  this  connection,  Mitchell  vs.  Mitchell,  40 
Ga.  11."  110/274  (34  S.  E.  600). 

"Both  as  to  the  refusal  of  the  court  to  grant  another  con- 
tinuance on  account  of  the  illness  of  one  of  the  parties  defendant, 
and  as  to  the  direction  of  a  verdict  in  favor  of  the  plaintiff,  this 
case  is  controlled  by  the  decision  of  this  court  in  Stanford  vs. 
Security  Co.,  110  Ga.  274  (34  S.  E.  600).  Not  only  does  it 
appear  that  the  case  had  several  times  been  continued  because 
of  the  illness  of  this  party,  but  that  at  the  preceding  term  the 
court  had  announced  that  the  case  would  not  be  again  continued 
on  that  account,  and  that  interrogatories  for  him  should  be 
sued  out  if  his  testimony  was  desired."  121/466  (49  S.  E. 
286). 

SEC.  60.  ILLNESS  OF  COUNSEL.  "A  motion  for  continuance 
on  the  ground  of  counsel's  illness,  like  all  other  motions  of  the 
same  nature,  is  addressed  to  the  sound  discretion  of  the  court. 
When  counsel  whose  illness  is  the  ground  of  the  motion  is  in 
court,  and  personally  makes  the  motion,  the  court  may  take  into 
consideration  his  physical  appearance  and  the  mental  and  physi- 
cal vigor  displayed  in  making  the  motion,  in  determining 
whether  the  ends  of  justice  require  a  continuance  of  the  case. 
Where  such  a  motion  is  overruled,  and  the  case  is  conducted  to 
a  conclusion  by  the  same  counsel,  and  the  court  certifies  that 
the  case  was  managed  with  his  usual  ability,  the  reviewing 
court  can  not  say  that  the  trial  court  abused  his  discretion  in 
refusing  to  continue  the  case  on  this  account."  141/594  (81 
S.  E.  849). 

SEC.  61.  ABSENCE  or  WITNESS.  "Motions  for  continuance 
are  in  the  discretion  of  the  presiding  judge,  and  unless  that 
discretion  has  been  abused  and  the  ends  of  justice  demand  it, 
this  court  will  not  interfere  with  the  ruling  of  the  court  below. 

"It  will  not  necessitate  a  new  trial  that  the  court  refused  a 
continuance,  on  the  ground  that  a  witness  had  not  been  exam- 
ined by  interrogatories  and  was  under  promise  to  be  present 
and  her  presence  was  desirable,  where  it  appears  that  such 
witness  was  desired  to  testify  on  the  question  of  undue  influ- 
ence, and  that  if  her  testimony  were  had,  it  would  not,  and 
ought  not,  to  change  the  verdict. 


26  CONTINUANCES 

"We  hesitated  much  on  the  denial  of  the  continuance,  in 
view  of  the  fact  that  some  heirs  at  law  had  but  recently  been 
made  parties,  and  one  witness  on  the  question  of  undue  influence 
had  not  been  examined  by  interrogatories,  and  was  under  prom- 
ise to  be  present,  and  her  presence  was  very  desirable,  as  stated 
by  counsel.  But  in  the  light  of  the  rule  that  motions  to  con- 
tinue are  much  within  the  discretion  of  the  presiding  judge, 
and  unless  that  discretion  has  been  abused  and  the  ends  of 
justice  demand  it,  the  rule  is  inflexible  that  this  court  will  not 
interfere,  and  having  carefully  examined  the  evidence  which 
counsel  hoped  to  procure,  and  failing  to  see  a  probability  of  a 
change  of -the  verdict  on  undue  influence,  or  that  there  ought 
to  be  a  change  of  it  on  that  evidence,  we  do  not  see  how,  without 
departing,  from  a  long  current  of  authority  from  First  Kelly 
down,  we  can  control  the  discretion  of  the  presiding  judge.  Nor 
do  we  see  that  the  other  point  is  stronger,  to  wit,  that  certain 
clients  had  just  been  made  parties.  They  lived  in  other  states ; 
they  could  not  have  been  of  much  use  on  the  issue  of  undue 
influence ;  most,  if  not  all,  were  infants ;  the  great  issue  in  the 
case  was  upon  legal  questions  on  the  admissibility  of  the  testi- 
mony of  Mr.  Alexander,  on  the  admissibility  of  testator's  state- 
ments, on  the  words  and  figures  of  the  will  and  codicil,  whether 
plain  or  ambiguous,  upon  which  questions  it  is  quite  difficult 
to  see  how  strangers  and  infants  could  throw'  much  light  and 
contribute  much  strength  to  so  able  an  array  of  counsel  as  rep- 
resented the  caveators,  especially  as  it  is  not  hinted  that  either 
absent  client  was  a  lawyer."  72/570,  636. 

"Where  a  motion  is  made  to  continue  the  trial  of  a  case 
because  of  the  absence  of  a  witness,  the  judge  may  consider  the 
evidence  expected  to  be  given  by  the  absent  witness,  in  connec- 
tion with  the  pleadings,  for  the  purpose  of  determining  the 
materiality  of  the  evidence,  and  if  he  finds  that  the  testimony 
of  the  absent  witness  would  be  either  immaterial  or  inadmissi- 
ble, he  should  refuse  the  motion.  The  plea  in  this  case  made 
the  testimony  of  the  absent  witness  immaterial  as  to  some  part 
of  it,  and  inadmissible  as  to  the  other  part,  and  there  was  no 
error  in  refusing  the  continuance.  Richter  vs.  State,  4  Ga. 
App.  274  (61  S.  E.  147)  ;  Butler  vs.  Ambrose,  51  Ga.  152." 
10  App.  415  (73  S.  E.  350). 

When  the  postponement  of  a  case  was  requested  on  the  ground 
of  the  absence  of  a  witness  served  with  a  subpoena  duces  tecuin, 
it  was  not  abuse  of  discretion  to  refuse  the  request,  when  it 


CONTINUANCES  27 

appeared  that  the  witness  was  a  resident  of  the  county  and  was 
not  served  with  the  subpoena  duces  tecum  ten  days  prior  to  the 
trial  of  the  case.  Code,  §5844. 

SEC.  62.  ABSENCE  OF  COUNSEL.  "The  postponement  of  the 
trial  of  a  case  to  a  later  date  in  the  term  is  in  the  sound  dis- 
cretion of  the  judge,  and  his  refusal  to  postpone  will  not^  be 
controlled  unless  his  discretion  is  manifestly  abused.  Lyles 
vs.  State,  130  Ga.  294  (60  S.  E.  578). 

"The  postponement  of  the  trial  of  a  case  on  account  of  the 
absence  of  counsel  therein,  who  is,  without  leave,  engaged  in 
the  trial  of  a  case  in  a  court  of  a  different  circuit  is  in  the 
discretion  of  the  court,  and  a  postponement  for  such  case  is  not 
favored."  137/209  (73  S.  E.  400). 

"The  postponement  of  the  trial  of  a  case  on  account  of  the 
absence  of  counsel  therein,  who  is,  without  leave,  engaged  in 
the  trial  of  a  case  in  a  court  of  a  different  circuit,  is  in  the 
discretion  of  the  court,  and  a  postponement  for  such  cause  is 
not  favored.  Kennedy  vs.  Dukes,  137/209  (73  S.  E.  400). 
Especially  is  this  true  where  at  a  previous  trial  this  attorney, 
for  whose  absence  without  leave  another  postponement  is  asked, 
agreed  with  the  trial  court,  that  if  another  postponement  was 
had,  he  would  be  certain  to  try  the  case  at  the  next  term."  12 
App.  22  (76  S.  E.  751). 

SEC.  63.  ABSENCE  or  PAETY.  "Where  it  is  uncontradicted 
that  the  absence  of  a  party  to  a  cause  is  due  to  the  fact  that  he 
is  at  home,  where  his  presence  is  necessary,  for  the  reason  that 
'his  wife  is  likely  to  be  confined  at  any  minute,'  and  his  counsel 
makes  the  requisite  statement  that  he  (counsel)  can  not  safely 
go  to  trial  without  the  presence  of  the  absent  party,  and  espe- 
cially when  it  is  shown,  in  addition,  that  the  absent  party  is  a 
material  witness,  the  ends  of  justice  require  that  a  continuance 
be  had.  Civil  Code  (1910),  §5717.  Under  such  circumstances, 
the  continuances  of  such  a  party  are  not  exhausted,  although 
the  case  may  previously  have  been  continued  by  reason  of  the 
absence  of  his  counsel  in  the  General  Assembly,  and  in  another 
instance  continued  by  agreement.  The  judge  erred  in  refusing 
to  continue  the  case,  and  the  subsequent  proceedings  in  the  trial 
were  therefore  nugatory."  11  App.  495  (75  S.  E.  841). 

"The  showing  for  a  continuance,  in  so  far  as  it  related  to  the 
application  made  by  counsel  for  one  of  the  several  defendants, 
and  which  was  based  on  the  absence  of  their  client,  being  in  all 
respects  regular  and  complete,  and  there  being  no  counter  show- 


28  CONTINUANCES 

ing,  and  it  not  appearing  from  the  bill  of  exceptions  or  the 
record  that  any  previous  continuance  had  been  granted  the 
defendant,  or  that  the  case  could  proceed  to  trial  against  the 
other  defendants  alone,  it  was  error  to  overrule  the  motion  to 
continue,  made  by  counsel  on  the  ground  of  their  client's 
absence."  116/211,  215  (42  S.  E.  519). 

"It  appearing,  without  contradiction,  that  one  of  the  parties 
to  the  cause  was  detained  at  his  home  on  account  of  the  extreme 
illness  of  his  child,  and  that  his  attendance  upon  the  child  was 
necessary,  it  was  error  to  refuse  to  continue  the  case,  after  his 
counsel  had  stated  in  effect  that  his  presence  was  absolutely 
necessary  to  enable  counsel  to  proceed  with  the  trial."  13  App. 
135  (78  S.  E.  860). 

"The  ground  of  the  so-called  motion  for  a  new  trial,  relating 
to  the  absence  of  the  movant  when  the  case  was  tried,  was  in 
effect  a  motion  to  set  aside  judgment,  made  at  the  term  at  which 
the  judgment  was  rendered ;  and  since  it  was  shown  to  the  court 
that  the  defendant  was  providentially  prevented  from  attending 
court,  by  an  illness  which  rendered  it  impossible  for  her  to 
leave  her  home,  and  that  she  had  previously  filed  a  meritorious 
defense,  which,  if  supported  by  evidence,  would  have  relieved 
her  from  any  liability  upon  the  notes  which  were  the  basis  of 
the  suit,  the  judgment  should  have  been  set  aside,  in  order  that 
the  defendant  might  be  heard  on  the  substantial  issue  raised 
by  the  pleadings. 

"Proof  that  the  defendant  was  a  married  woman  who  was 
not  separated  from  her  husband,  was,  without  more,  not  suffi- 
cient to  disprove  or  impeach  the  statement  in  her  affidavit  that 
she  had  no  one  by  Avhom  she  could  send  a  physician's  certificate 
or  otherwise  notify  her  counsel  that  she  was  physically  unable 
to  attend  the  court.  Even  if  there  be  a  presumption  that  every 
husband  does  his  duty,  the  duty  of  making  a  showing  for  a 
continuance  for  his  wife  in  a  suit  upon  a  note,  evidencing  a 
debt  which  was  originally  the  debt  of  the  defendant's  first 
husband,  is  not  imposed  by  law  upon  the  second  husband  as  the 
successor  to  the  marital  offices  of  his  predecessor."  13  App. 
347  (79  S.  E.  184). 

SEC.  64.  SURPRISE.  "Material  amendments  to  the  plead- 
ings, made  pending  trial,  may  entitle  the  defendant  to  a  con- 
tinuance upon  the  ground  of  surprise.  In  such  cases,  the  party 
should  formally  move  the  court  for  a  continuance,  and  declare 
that  he  is  surprised  and  less  ready  to  proceed  with  the  trial ; 
whereupon  the  court,  looking  to  the  nature  of  the  amendment 


CONTINUANCES  29 

and  to  all  the  history  of  the  case,  should  exercise  a  sound  dis- 
cretion in  refusing  or  granting  a  postponement  or  continuance. 
Such  a  discretion  is  reviewable;  and  in  this  case  no  abuse 
appears."  4  App.  61,  62  (60  S.  E.  810). 

"At  the  opening  of  the  trial,  the  plaintiff  offered  a  slight 
amendment  to  the  petition,  for  the  purpose  of  avoiding  the 
effect  of  certain  special  demurrers  which  had  been  filed.  The 
court  allowed  the  amendment.  One  of  the  attorneys  for  the 
defendant  thereupon  stated  that  he  was  surprised,  and  moved 
a  continuance  of  the  case.  The  judge  stated  that  the  court 
would  pass  the  case  till  a  later  day  during  the  term ;  this  post- 
ponement the  defendant  declined.  The  court  asked  counsel  to 
state  specifically  wherein  he  was  surprised;  but  counsel  chose 
to  stand  upon  his  previous  general  statement  that  he  was  sur- 
prised. 'When  any  amendment  shall  be  made  to  the  pleadings 
or  other  proceedings  in  the  cause,  if  the  opposite  party  will 
make  oath,  or  his  coimsel  state  in  his  place,  that  he  is  surprised 
by  such  amendment,  and  that  he  is  less  prepared  for  trial,  and 
how,  than  he  would  have  been  if  such  amendment  had  not  been 
made,  and  that  such  surprise  is  not  claimed  for  the  purpose  of 
delay,  the  case  may  be  continued  in  the  discretion  of  the  judge, 
and  charged  to  the  amending  party.'  Civil  Code,  §5128  [5714]. 
From  a  perusal  of  the  terms  of  the  statute  just  quoted,  it  is 
palpable  that  there  was  no  error  in  refusing  a  continuance 
under  the  circumstances.  Indeed,  after  examining  the  amend- 
ment, we  are  satisfied  that  the  surprise  expressed  was  of  that 
purely  technical  nature  that  does  not  admit  of  investigation 
under  the  proving  of  'how  and  why.'  '  4  App.  276,  279  (61 
S.  E.  505). 

"A  motion  for  continuance  based  upon  the  ground  of  surprise 
is  effective  unless  the  court  is  advised  in  the  showing  for  con- 
tinuance wherein  and  in  what  respect  the  movant  is  not  pre- 
pared to  proceed  with  the  trial,  and  how  or  why  he  will  be 
better  prepared  to  meet  the  issue  in  the  event  the  court  should 
continue  the  case  upon  his  motion."  12  App.  837,  838  (79 
S.  E.  58). 

"Afotions  for  continuances  on  the  ground -of  surprise  occa- 
sioned by  an  amendment,  to  the  opposite  party's  petition  are 
addressed  to  the  sound  legal  discretion  of  the  trial  judge.  It 
will  never  be  held  to  be  an  abuse  of  discretion  to  overrule  a 
motion  for  continuance  based  on  this  ground,  when  neither  the 
movant  nor  his  counsel  states  how  and  wherein  he  is  less  pre- 
pared to  go  on  with  the  trial,  so  as  to  give  the  court  an  oppor- 


30  CONTINUANCES 

tunity  to  exercise  a  sound  legal  discretion.  Civil  Code  (1910), 
§5714;  G.  F.  &  A.  Ry  Co.  vs.  Sasser,  4  Ga,  App/276."  11 
App.  358  (75  S.  E.  518). 

"Upon  the  allowance  of  the  amendment,  the  defendant  moved 
for  a  continuance  on  account  of  it.  Movant  did  not  comply 
with  the  statute  which  requires  him  to  state  on  oath,  or  his 
counsel  to  state  in  his  place,  that  he  is  surprised  by  such  amend- 
ment and  that  he  is  less  prepared  for  trial,  and  how,  than  he 
would  have  been  if  such  amendment  had  not  been  made,  and 
that  such  surprise  is  not  claimed  for  the  purpose  of  delay. 
Motions  of  this  kind  are  in  the  discretion  of  the  judge  (Civil 
Code,  §5714),  and  there  was  no  abuse  of  discretion  in  over- 
ruling the  motion."  139/395  (77  S.  E.  557). 

"The  copy  of  the  note  sued  on,  attached  to  the  petition,  con- 
tained the  clause  that  it  was  payable  'at  the  4th  National 
Bank  of  Atlanta,  Ga.,  for  value  received,  with  interest  after 
date  until  paid,  at  8%  per  annum.'  By  an  amendment  to  the 
petition,  this  clause  was  stricken,  and  in  lieu  thereof  the  follow- 
ing inserted:  'At  the  3rd  National  Bank  of  Atlanta,  Ga.,  for 
value  received,  with  interest  at  6%  per  annum,'  etc.  (1)  The 
amendment  was  properly  allowed.  Chapman  vs.  Skellie,  65 
Ga.  125  (1).  (2)  Overruling  a  motion  to  continue  on  the 
ground  of  surprise  because  of  the  allowance  of  the  amendment 
was  not  an  abuse  of  discretion  in  the  absence  of  a  showing  that 
the  movant  was  less  prepared  to  go  to  trial.  Ga.  Fla.  &  Ala. 
By.  Co.  vs.  Sasser,  4  Ga.  App.  276  (2)  (61  S.  E.  505)."  10 
App.  522  (73  S.  E.  854). 

SEC.  65.  MOTION  FOR  NEW  TRIAL.  "A  rule  nisi  was  granted 
on  a  motion  for  a  new  trial  and  ordered  served,  and  the  motion 
set  to  be  heard  at  the  next  regular  term  of  the  court,  and  when 
it  was  duly  called  at  that  time,  it  appeared  that  the  rule  nisi 
had  not  been  served,  nor  service  waived,  and  no  excuse  for 
failure  to  serve  was  shown.  Held,  that  the  judge  did  not  abuse 
his  discretion  in  dismissing  the  motion  for  want  of  service. 
McMullen  vs.  Citizens  Bank,  123  Ga.  400  (51  S.  E.  342); 
Smedley  vs.  Williams,  112  Ga.  114  (37  "S.  E.  Ill)  ;  Connor 
vs.  State,  7  Ga.  App.  83  (66  S.  E.  482)."  13  App.  595  (79 
S.  E.  482). 

SEC.  66.  JOINT  PARTIES.  "A  joint  obligor  has  the  right  to 
require  contribution  on  the  part  of  his  co-principals,  towards  a 
payment  required  of  him,  but  for  which  each  obligor  is  equally 
liable.  Consequently,  an  action  upon  a  promissory  note,  brought 


CONTINUANCES  31 

against  two  or  more  defendants,  as  joint  makers,  can  not,  with- 
out the  consent  of  all  the  parties,  be  tried  piecemeal;  and  a 
showing  for  continuance  which  requires  a  postponement  as  to 
one  of  the  joint  obligors  operates  to  continue  the  case  as  a  whole 
and  as  to  all  of  the  defendants.".  4  App.  368  (61  S.  E.  516). 

SEC.  67.  AGREEMENT  OF  COUNSEL.  "The  discretion  of  the 
justice  of  the  peace  in  refusing  to  grant  a  continuance  of  a  case, 
on  the  written  agreement  of  the  attorneys  for  both  parties  that 
the  case  should  be  continued,  will  not  be  interfered  with  by  this 
court,  especially  when  the  exercise  of  such  discretion  by  the 
justice  of  the  peace  has,  on  certiorari,  been  approved  by  the 
judge  of  the  superior  court."  1  App.  221  (57  S.  E.  915). 

SEC.  68.  CONSENT  TO  TKIAL.  "In  a  justice's  court  a  suit 
upon  an  unconditional  contract  in  writing  may  be  tried  at  the 
first  term,  although  a  plea  be  filed,  if  the  plaintiff  be  present 
and  willing  to  proceed  to  trial.  Even  at  the  first  term,  the 
defendant  can  not  continue  the  case  as  a  matter  of  right. 

"This  decision  is  conversant  merely  about  the  meaning  of 
one  word — the  wrord  'consenting.'  The  plaintiff  sued  in  a  jus- 
tice's court  upon  an  unconditional  contract  in  writing.  The 
defendant's  counsel  appeared  at  the  first  term  and  filed  what 
amounted  to  a  plea  of  the  general  issue.  The  plaintiff  insisted 
upon  an  immediate  trial  of  the  case,  and  the  court,  over  objec- 
tion of  defendant's  counsel  allowed  him  to  proceed.  He  ob- 
tained a  judgment,  and  the  defendant  sought  by  certiorari  to 
set  the  same  aside,  and  the  ground  that  under  the  law  the  case 
was  not  triable,  over  his  objection  at  the  first  term.  The  judge 
of  the  superior  court  overruled  the  certiorari,  and  error  is 
assigned  to  that  ruling. 

"Civil  Code,  §§4133-4135,  governing  the  practice  in  such 
cases,  are  as  follows : 

"  '§4133.  All  cases  before  a  justice  of  the  peace  stand  for 
trial  at  the  time  and  place  designated  in  the  summons,  and  shall 
be  then  and  there  tried,  unless  continued  according  to  law. 

"  '§4134.  Whenever  the  defendant  in  the  justices'  courts  on 
an  unconditional  contract  in  writing  makes  defense,  he  shall 
make  such  defense  at  the  first  term. 

"  '§4135.  When  such  defense  is  thus  made,  the  cause  shall 
stand  for  trial  at  the  next  term  (subject,  however,  to  continu- 
ance as  provided  by  law)  ;  provided,  that  said  cause  may  be 


32  EVIDENCE 

tried  at  the  term  when  said  plea  is  filed,  if  the  plaintiff  or  his 
attorney  is  present  consenting  thereto.'  '  2  App.  137  (58 
S.  E.  307). 

"The  defendant  was  not  entitled  to  a  continuance  of  the  case 
on  the  ground  of  surprise  caused  by  the  amendment,  where  he 
failed  to  comply  with  the  requirements  of  the  Civil  Code,  §5714, 
by  stating  that  he  was  not  only  surprised,  by  such  amendment, 
but  that  he  was  less  prepared  for  trial,  and  how,  than  he  would 
have  been  if  such  amendment  had  not  been  made,  etc."  143/786 
(85  S.  E.  1036). 


CHAPTER  IV 

EVIDENCE. 

SECTION  69.  SCOPE  OF  CHAPTER.  It  could  not  be  expected 
that  there  would  be  given  here  the  law  of  evidence  beyond  the 
procedure.  Evidence  itself  would  make  a  volume.  However, 
as  a  part  of  procedure,  there  will  be  given  some  general  princi- 
ples. 

SEC.  70.  DEFINITION  OF  EVIDENCE.  Evidence  is  the  "means 
by  which  any  fact  which  is  put  in  issue,  is  established  or  dis- 
proved." 10/567. 

"  'The  word  evidence,  in  legal  acceptation,  included  all  the 
means  by  which  any  alleged  matter  of  fact,  the  truth  of  which 
is  submitted  to  investigation,  is  established  or  disproved.  This 
term  and  the  word  proof  are  often  used  indifferently  as  synon- 
ymous with  each  other;  but  the  latter  is  applied  by  the  most 
accurate  logicians  to  the  effect  of  evidence,  and  not  to  the 
medium  by  which  truth  is  established.'  Greenleaf  Ev.,  vol.  1, 
sec.  1."  77/181,  190  (3  S.  E.  199). 

SEC.  71.  OBJECT  OF  EVIDENCE.  "The  object  of  all  legal 
investigation  is  the  discovery  of  truth.  The  rules  of  evidence 
are  framed  with  a  view  to  this  prominent  end,  seeking  always 
for  pure  sources  and  the  highest  evidence."  Code,  §5728. 

SEC.  72.  SUNDRY  DEFINITIONS.  "Competent  evidence  is 
that  which  is  admissible.  Sufficient  evidence  is  that  which  is 
satisfactory  for  the  purpose.  Cumulative  evidence  is  that  which 
is  additional  to  other  already  obtained.  Direct  evidence  is  that 
which  immediately  points  to  the  question  at  issue.  Indirect  or 
circumstantial  evidence  is  that  which  only  tends  to  establish  the 


EVIDENCE  33 

issue  by  proof  of  various  facts,  sustaining  by  their  consistency 
the  hypothesis  claimed.  Presumptive  evidence  consists  of  infer- 
ences drawn  by  human  experience  from  the  connection  of  cause 
and  effect,  and  observation  of  human  conduct."  Code,  §5729. 

SEC.  73.  AMOUNT  OF  MENTAL  CONVICTION.  "Moral  and 
reasonable  certainty  is  all  that  can  be  expected  in  legal  investi- 
gation. In  all  civil  cases  the  preponderance  of  testimony  is 
considered  sufficient  to  produce  mental  conviction.  In  criminal 
cases  a  greater  strength  of  mental  conviction  is  held  necessary 
to  justify  a  verdict  of  guilty."  Code,  §5730. 

SEC.  74.  PREPONDERANCE  OF  EVIDENCE.  "By  preponder-' 
ance  of  evidence  is  meant  that  superior  weight  of  evidence  upon 
the  issues  involved,  which,  while  not  enough  to  wholly  free  the 
mind  from  a  reasonable  doubt,  is  yet  sufficient  to  incline  a  rea- 
sonable and  impartial  mind  to  one  side  of  the  issue,  rather  than 
to  the  other."  Code,  §5731. 

SEC.  75.  How  DETERMINED.  "In  determining  where  the 
preponderance  of  evidence  lies,  the  jury  may  consider  all  the 
facts  and  circumstances  of  the  case,  the  witnesses'  manner  of 
testifying,  their  intelligence,  their  means  and  opportunity  for 
knowing  the  facts  to  which  they  testified,  the  nature  of  the  facts 
to  which  they  testified,  and  the  probability  or  improbability  of 
tbeir  testimony,  their  interest  or  want  of  interest,  and  also  their 
personal  credibility  so  far  as  the  same  may  legitimately  appear 
from  the  trial.  The  jury  may  also  consider  the  number  of  the 
witnesses,  though  the  preponderance  is  not  necessarily  with  the 
greater  number."  Code,  §5732. 

SEC.  76.  SAME  RULES  IN  ALL  COURTS  AND  CASES.  "Gener- 
ally the  rules  of  evidence  are  the  same  in  all  the  courts  of  this 
State,  and  upon  every  trial  the  exceptions  exist  only  by  express 
statute."  Code,  §5733. 

SEC.  77.  MATTERS  JUDICIALLY  RECOGNIZED.  "The  exist- 
ence and  territorial  extent  of  States,  their  forms  of  government, 
and  symbols  of  nationality,  the  laws  of  nations,  and  general 
customs  of  merchants,  the  admiralty  and  maritime  courts  of 
the  world  and  their  seals,  the  political  constitution  and  history 
of  our  own  government,  as  well  as  the  local  divisions  of  our  own 
State,  the  seals  of  the  several  departments  of  the  government 
of  the  United  States,  and  of  the  several  States  of  the  Union, 
and  all  similar  matters  of  public  knowledge  are  judicially  recog- 
nized without  the  introduction  of  proof."  Code,  §5734. 


34  EVIDENCE 

SEC.  78.  PRESUMPTIONS  OF  LAW  AND  FACT.  "Presump- 
tions are  either  of  law  or  of  fact.  The  former  are  conclusions 
and  inferences  which  the  law  draws  from  given  facts.  The 
latter  are  exclusively  questions  for  the  jury,  to  be  decided  by 
the  ordinary  test  of  human  experience."  Code,  §5735. 

SEC.  79.  ESTOPPELS.  "Presumptions  of  law  are  sometimes 
conclusive,  and  an  averment  to  the  contrary  will  not  be  allowed. 
These  are  termed  estoppels,  and  are  not  generally  favored. 
Among  these  are  the  presumptions  in  favor  of  a  record  or  judg- 
ment unreversed;  of  the  proper  conduct  of  courts  and  judicial 
officers  acting  within  their  legitimate  sphere;  of  other  officers 
of  the  law,  after  lapse  of  time  has  rendered  it  dangerous  to  open 
the  investigation  of  their  acts  in  regard  to  mere  formalities  of 
the  law;  of  ancient  deeds,  and  other  instruments  more  than 
thirty  years  old,  when  they  come  from  the  proper  custody,  and 
possession  has  been  held  in  accordance  with  them;  recitals  in 
deeds,  except  payment  of  purchase-money,  as  against  the  grantor 
acting  in  his  own  right,  and  sui  juris,  and  his  privies  in  estate, 
blood,  and  in  law;  the  landlord's  title,  as  against  his  tenant, 
while  tenant  in  possession ;  solemn  admissions  made  in  judicio, 
and  other  admissions  upon  which  other  parties  have  acted,  either 
to  their  own  injury  or  the  benefit  of  the  persons  making  the 
admissions;  and  similar  eases  where  it  would  be  more  unjust 
and  productive  of  more  evil  to  hear  the  truth  than  to  forbear 
the  investigation."  Code,  §5736. 

SEC.  80.  PRIMA  FACIE  PRESUMPTIONS.  "Other  presump- 
tions of  law,  such  as  of  innocence,  and  in  some  cases  of  guilt, 
of  continuance  of  life  for  seven  years,  of  a  mental  state  once 
proved  to  exist,  and  all  similar  presumptions,  may  be  rebutted 
by  proof."  Code,  §5740. 

SEC.  81.  JURY  RIGHT  TO  INFER,  WHAT.  "In  arriving  at 
a  verdict,  the  jury  from  facts  proved,  and  sometimes  from  the 
absence  of  counter-evidence,  may  infer  the  existence  of  other 
facts  reasonably  and  logically  consequent  on  those  proved." 
Code,  §5743. 

SEC.  82.  MUST  BE  RELEVANT.  "The  evidence  must  relate 
to  the  questions  being  tried  by  the  jury,  and  bear  upon  them 
either  directly  or  indirectly.  Irrelevant  matter  should  be  ex- 
cluded." Code,  §5744. 

SEC.  83.  CHARACTER  AND  CONDUCT  OF  PARTIES.  "The  gen- 
eral character  of  the  parties,  and  especially  their,  conduct  in 


EVIDENCE  35 

other  transactions,  are  irrelevant  matter,  unless  the  nature  of 
the  action  involves  such  character  and  renders  necessary  or 
proper  the  investigation  of  such  conduct."  Code,  §5745. 

SEC.  84.  BURDEN  or  PROOF.  "The  burden  of  proof  gener- 
ally lies  upon  the  party  asserting  or  affirming  a  fact,  and  to  the 
existence  of  whose  case  or  defense  the  proof  of  such  fact  is 
essential.  If  a  negation  or  negative  affirmation  be  so  essential, 
the  proof  of  such  negative  lies  on  the  party  so  affirming  it." 
Code,  §5746. 

SEC.  85.  CHANGING  ONUS.  "What  amount  of  evidence  will 
change  the  onus  or  burden  of  proof,  is  a  question  to  be  decided 
in  each  case  by  the  sound  discretion  of  the  court."  Code,  §5747. 

SEC.  86.  BEST  EVIDENCE.  "The  best  evidence  which  exists 
of  the  fact  sought  to  be  proved  must  be  produced,  unless  its 
absence  is  satisfactorily  accounted  for."  Code,  §5748. 

SEC.  87.  FAILURE  TO  PRODUCE  EVIDENCE.  "Where  a  party 
has  evidence  in  his  power  and  within  his  reach,  by  which  he  may 
repel  a  claim  or  charge  against  him,  and  omits  to  produce  it,  or, 
having  more  certain  and  satisfactory  evidence  in  his  power, 
relies  on  that  which  is  of  a  weaker  and  inferior  nature,  a  pre- 
sumption arises  that  the  charge  or  claim  is  well  founded ;  but 
this  presumption  may  be  rebutted."  Code,  §5749. 

SEC.  88.  PRIMARY  AND  SECONDARY  EVIDENCE.  "Primary 
evidence  is  such  as  in  itself  does  not  indicate  the  existence  of 
other  and  better  proof.  Secondary  evidence  is  such  as  from 
necessity  in  some  cases  is  substituted  for  stronger  and  better 
proof."  Code,  §5750. 

SEC.  89.  POSITIVE  AND  NEGATIVE  TESTIMONY.  "The  ex- 
istence of  a  fact  testified  to  by  one  positive  witness  is  to  be 
believed,  rather  than  that  such  fact  did  not  exist  because  many 
witnesses  who  had  the  same  opportunity  of  observation  swear 
that  they  did  not  see  or  know  of  its  having  transpired.  This 
rule  does  not  apply  when,  two  parties  having  equal  facilities  for 
seeing  or  Hearing  a  thing,  one  swears  that  it  occurred,  the  other 
that  it  did  not."  Code,  §5751. 

SEC.  90.  WRITTEN  EVIDENCE.  "Written  evidence  is  con- 
sidered of  higher  proof  than  oral ;  and  in  all  cases  where  the 
parties  have  reduced  their  contract,  agreement,  or  stipulation 
to  writing,  and  assented  thereto,  it  is  the  best  evidence  of  the 
same."  Code,  §5752. 


36  EVIDENCE 

SEC.  91.  WILLS  AND  RECORDS.  "Copies  of  records  of  judi- 
cial proceedings,  and  wills  admitted  to  probate,  are  admitted 
as  primary  evidence,  when  properly  authenticated.  In  all  other 
cases  a  copy  is  secondary  evidence."  Code,  §5753. 

SEC.  92.  OFFICER  DE  FACTO.  "An  officer  de  facto  may  be 
proved  by  his  acts,  without  the  production  of  his  commission  or 
appointment."  Code,  §5754. 

SEC.  93.  STERN'S  UNITED  STATES  AND  STAFFORD'S  OFFICE 
CALENDAR.  "Stem's  United  States  calendar  and  Stafford's  office 
calendar  are  admissible,  in  proof  of  dates  for  the  space  of  time 
covered  respectively  by  them,  without  further  proof."  Code, 
§5755. 

SEC.  94.  ROSTER  OF  GEORGIA  SOLDIERS  AS  EVIDENCE. 
"When  the  roster  of  Georgia  soldiers,  sailors,  and  marines  who 
served  in  any  part  of  the  army  of  the  State,  or  the  navy  thereof, 
from  1861  to  the  surrender  in  1865,  shall  be  completed  and 
certified  by  the  majority  of  the  board  of  the  Georgia  Soldier 
Roster  Commission,  as  prescribed  by  law,  it  shall  be  accepted 
an  prima  facie  evidence  of  the  truth  thereof."  Code-,  §5756. 

SEC.  95.  INSCRIPTIONS  ON  MONUMENTS,  ETC.  "Inscrip- 
tions on  walls,  monuments,  and  other  fixed  objects  may  be  proved 
by  copies  established  as  such."  Code,  §5757. 

SEC.  96.  OTHER  EXCEPTIONS.  "Other  cases  of  necessity  or 
manifest  convenience,  resting  on  like  principles  of  reason  and 
justice,  may  be  made  exceptions  to  the  general  rule."  Code, 
§5758. 

SEC.  97.  SECONDARY  EVIDENCE,  WHEN  ADMITTED.  "In 
order  to  admit  secondary  evidence,  it  must  appear  that  the  pri- 
mary evidence  for  some  sufficient  cause,  is  not  accessible  to  the 
diligence  of  the  party.  This  showing  is  made  to  the  court,  who 
will  hear  the  party  himself  on  the  question  of  diligence  and  the 
inaccessibility  of  the  primary  evidence."  Code,  §5759. 

SEC.  98.  DEGREES  THEREIN.  "There  are  degrees  in  secon- 
dary evidence,  and  the  best  should  always  be  produced.  Thus 
a  duplicate  is  better  than  a  copy,  and  an  examined  copy  than 
oral  evidence."  Code,  §5760. 

SEC.  99.  EXISTENCE  OF  ORIGINAL.  "The  existence  of  a 
genuine  original  is  essential  to  the  admissibility  of  a  copy.  The 
amount  of  evidence  to  show  such  existence  must  vary  with  the 
circumstances  of  each  case.  Where  no  direct  issue  is  made  upon 
the  fact,  slight  evidence  would  be  sufficient."  Code,  §5761. 


EVIDENCE  37 

Ssc.  100.  HEABSAY  EVIDENCE.  ''Hearsay  evidence  is  that 
which  does  not  derive  its  value  solely  from  the  credit  of  the 
witness,  but  rests  mainly  on  the  veracity  and  competency  of 
other  persons.  The  very  nature  of  the  evidence  shows  its  weak- 
ness, and  it  is  admitted  only  in  specified  cases  from  necessity." 
Code,  §5762. 

SEC.  101.  SOMETIMES  ORIGINAL  EVIDENCE.  "When,  in  a 
legal  investigation,  information,  conversations,  letters  and  re- 
plies, and  similar  evidence  are  facts  to  explain  conduct  and 
ascertain  motives,  they  are  admitted  in  evidence,  not  as  hearsay, 
but  as  original  evidence."  Code,  §5763. 

SEC.  102.  PEDIGREE,  How  PROVED.  "Pedigree,  including 
descent,  relationship,  birth,  marriage,  and  death,  may  be  proved 
either  by  the  declarations  of  deceased  persons  related  by  blood 
or  marriage,  or  by  general  repute  in  the  family,  or  by  genealo- 
gies, inscriptions,  'family  trees,'  and  similar  evidence."  Code, 
§5764. 

SEC.  103.  PROOF  OF  IDENTITY.  "Concordance  of  name 
alone  is  some  evidence  of  identity.  Residence,  location,  owner- 
ship of  property,  and  other  like  facts  may  be  proved.  Reason- 
able certainty  is  all  that  can  be  required.  In  civil  suits  parties 
are  generally  relieved  from  the  onus  of  proving  identity,  as  it 
is  a  fact  generally  more  easy  to  disprove  than  to  establish." 
Code,  §5765. 

SEC.  104.  RES  GESTAE.  "Declarations  accompanying  an 
act,  or  so  nearly  connected  therewith  in  time  as  to  be  free  from 
all  suspicion  of  device  or  afterthought,  are  admissible  in  evidence 
as  part  of  res  gestae."  Code,  §5766. 

SEC.  105.  DECLARATIONS  OF  PERSONS  IN  POSSESSION.  "Dec- 
larations of  a  person  in  possession  of  property,  in  disparagement 
of  his  own  title,  are  admissible  in  evidence  in  favor  of  any  one, 
and  against  privies.  Declarations  in  favor  of  his  own  title  are 
admissible  to  prove  his  adverse  possession."  Code,  §5767. 

SEC.  106.  OF  DECEASED  PERSONS.  "The  declarations  and 
entries  of  a  person,  since  deceased,  against  his  interest,  and  not 
made  with  a  view  to  pending  litigation,  are  admissible  in  evi- 
dence in  any  case."  Code,  §5768. 

SEC.  107.  BOOKS  OF  ACCOUNT.  "The  books  of  account  of 
any  merchant,  shopkeeper,  physician,  blacksmith,  [farmer, 


38  EVIDENCE 

dairyman,  planter]  or  other  person  doing  a  regular  businese  and 
keeping  daily  entries  thereof  may  be  admitted  in  evidence  as 
proof  of  such  accounts,  upon  the  following  conditions. 

"1.  That  he  kept  no  clerk,  or  else  the  clerk  is  dead  or  other- 
wise inaccessible,  or  for  any  other  reason  the  clerk  is  disqualified 
from  testifying. 

"2.  Upon  proof  (the  party's  oath  being  sufficient)  that  the 
book  tendered  is  his  book  of  original  entries. 

"3.  Upon  proof  (by  his  customers)  that  he  usually  kept 
correct  books. 

"4.  Upon  inspection  by  the  court,  to  see  if  the  books  are 
free  from  any  suspicion  of  fraud."  Park's  Annotated  Code, 
1914,  §5769. 

This  law  was  founded  on  the  Act  of  December  23,  1843, 
which  was  in  this  language:  "that  from  and  after  the  passing 
of  this  Act  physicians,  blacksmiths  and  all  other  persons  in  the 
practice  of  any  regular  craft,  shall  be  allowed  to  sue  for  and 
recover  judgment  in  the  civil  courts  of  law  in  this  State  on 
open  accounts  in  their  favor  upon  the  production  and  proof  of 
their  books  of  account  in  the  same  manner  and  on  the  same 
terms  as  is  now  authorized  by  existing  law  in  cases  where  trades- 
men, and  merchants  are  parties  plaintiff  in  said  court."  The 
Code  of  1861  has  this  law  in  this  form:  "The  book  of  accounts 
of  any  merchant,  shop-keeper,  physician,  blacksmith  or  other 
person  doing  a  regular  business  and  keeping  daily  entries  thereon, 
may  be  admitted  in  evidence  as  proof  of  such  accounts  upon 
the  following  condition." 

This  law  remained  in  the  Code  with  little  alteration  until  the 
Act  of  1910,  which  added  "farmer,  dairyman  and  planter,"  so 
that  it  now  reads:  "The  books  of  account  of  any  merchant, 
shop-keeper,  physician,  blacksmith,  farmer,  dairyman,  planter 
or  other  person  doing  a  regular  business  and  keeping  daily 
entries  thereof  may  be  admitted  in  evidence  as  proof  of  such 
account,  upon  the  following  condition :" 

In  some  of  the  early  decisions,  the  word  "craft"  is  used  as 
defining  or  limiting  those  whose  books  could  go  in  evidence 
under  this  law.  It  will  be  seen  that  this  is  stricken  out  now, 
and  under  the  decision  in  113  Ga.  262  (38  S.  E.  834),  "Books 
of  account  other  than  those  doing  a  regular  business  and  keep- 
ing daily  entries  thereof  who  are  not  merchants,  shop-keepers, 
physicians  or  blacksmiths,  are  not  admissible  to  prove  an  ac- 
count." Since  this  decision,  the  Act  of  1910  was  passed,  and  in 
the  enumeration  there  would  be  added  "fanner,  dairyman, 


EVIDENCE  39 

planter,"  and  of  course  all  others  doing  a  regular  business  and 
making  daily  entries  could  prove  their  accounts  in  the  same 
way. 

SEC.  108.  PROOF  OF  CORRECTNESS  OF  BOOKS,  "To  author- 
ize a  recovery  upon  shop  books,  where  the  entries  are  made  in 
the  hand-writing  of  the  party,  the  plaintiff,  among  other  things, 
must  prove  by  his  customers,  that  he  kept  correct  books.  And 
it  is  no  compliance  with  the  rule,  for  the  witnesses  to  state,  that 
they  considered  their  accounts  reasonable — admitting,  at  the 
same  time,  that  they  had  never  examined  the  items,  and  could 
not  say  that  the  services  charged  were  actually  rendered. 

"Before  the  books  of  the  party  can  be  admitted  in  evidence, 
they  are  to  be  submitted  to  the  inspection  of  the  court ;  and  if 
they  do  not  appear  to  be  a  register  of  the  daily  business  of  the 
party,  and  to  have  been  honestly  and  fairly  kept,  they  are  to 
be  excluded.  Explanatory  evidence  may  be  offered ;  and  if  the 
objections  are  prima  facie  accounted  for,  the  books  should  be 
submitted  to  the  jury — letting  the  objections  go,  under  the 
charge  of  the  court,  to  their  credit,  rather  than  to  their  com- 
petency. 

"Books,  per  se,  are  not  sufficient  to  charge  the  defendant  with 
the  debts  and  accounts  of  third  persons."  8/74. 

SEC.  109.  PRESUMPTION  OF  SALE  OF  GOODS.  "The  plaintiff 
brought  suit  against  defendant  on  account,  in  which  were  charged 
articles  as  sold  to  defendant  'per  Pate'  and  'per'  others.  In 
proof  of  the  account,  plaintiff  introduced  his  book  of  original 
eu tries  in  evidence,  and  proved  that  he  kept  correct  books ; 

"Held,  in  the  absence  of  proof  to  the  contrary,  that  the  pre- 
sumption was  that  the  goods  so  charged  were  sold  to  defendant." 
31/346. 

SEC.  110.  PERSON  TO  WHOM  GOODS  WERE  CHARGED.  "The 
suit  being  upon  an  open  account,  and  the  defense  being  that  the 
goods  were  purchased  by  the  defendant's  father  and  should  have 
been  charged  to  him,  evidence  of  the  plaintiff's  clerk  that  the 
defendant  proposed  to  him  to  open  an  account,  that  the  witness 
replied  that  he  would  see  the  plaintiff  about  it,  that  he  did  see 
the  plaintiff  who  authorized  him  to  let  defendant  have  the  goods 
desired,  was  admissible,  although  such  authority  was  given  in 
the  absence  of  the  defendant. 

"Had  such  evidence  been  rejected,  it  would  not  have  altered 
the  result  in  this  case. 


40  EVIDENCE 

"The  plaintiff's  books  were  admissible  to  show  to  whom  the 
goods  were  in  fact  charged. 

"They  were  also  admissible  to  show  the  sale  of  some  of  the 
goods,  which  was  made  and  entries  thereof  written  by  the 
plaintiff  himself;  the  books  having  been  proved  to  be  books  of 
original  entry  and  correctly  kept,  that  the  plaintiff  had  a  clerk 
would  not  render  such  entries  inadmissible. 

"Nor  were  they  rendered  inadmissible  by  the  fact  that  the 
books  had  formerly  been  used  by  a  firm  of  which  plaintiff  was 
a  member,  and  after  the  retirement  of  the  other  partner,  had 
continued  to  be  used  by  the  plaintiff.  Nor  does  it  matter  that 
they  were  identified  by  a  clerk  and  not  by  the  plaintiff  himself. 

"Where,  one  opened  an  account  for  groceries  to  be  furnished 
to  his  father,  the  duty  was  upon  him  to  notify  the  grocer  when 
he  refused  to  be  longer  responsible,  and  was  not  on  the  latter  to 
refuse  further  credit  without  additional  authority."  66/211, 
212. 

SEC.  111.  REFRESHING  RECOLLECTION  FKOM  BOOKS.  "The 
evidence  as  set  out  in  the  answer  of  the  magistrate  was  sufficient 
to  authorize  the  Verdict  in  the  plaintiff's  favor.  It  was  not 
erroneous  to  refuse  to  reject  testimony  of  the  plaintiff  and  his 
clerk,  that  they  had  refreshed  their  recollection  as  to  the  cor- 
rectness of  the  account  by  examination  of  the  books  in  which 
the  account  was  charged,  and,  after  having  so  refreshed  their 
recollection,  they  would  swear  that  the  account  was  correct." 
14  App.  244  (80  S.  E.  676). 

SEC.  112.  BOOKS  WHICH  ARE  ADMISSIBLE.  "  'Books  of 
account  of  others  than  those  doing  a  regular  business  and  keep- 
ing daily  entries  thereof,  who  are  not  merchants,  shop-keepers, 
physicians,  or  blacksmiths,  are  not  admissible  in  evidence  to 
prove  an  account.'  Bass  vs.  Gobert,  113/262  (38  S.  E.  834)." 
142/447  (83  S.  E.  104). 

It  will  be  noted  that  this  opinion  makes  no  reference  to  the 
Acts  of  1910,  page  57,  which  amended  the  section  of  the  Code 
putting  therein  "farmer,  dairyman  and  planter."  The  Acts  of 
1910  were  not  codified  in  the  Code  of  1910  and  independent 
of  this  decision  the  Act  of  1910  is  of  force. 

SEC.  113.  LEDGERS.  "That  a  book  is  kept  in  ledger  form  is 
not  a  valid  objection  to  its  admission  as  a  'book  of  original  en- 
tries,' under  section  5769  of  the  Civil  Code. 

"Even  if  the  book  offered  in  evidence  in  this  case  was  not  a 
book  of  original  entries,  it  was  properly  admitted  in  corrobora- 


EVIDENCE  41 

tion  of  an  admission  by  the  defendant  that  he  was  indebted  to 
the  plaintiffs  in  an  amount  approximately  the  same  as  that 
claimed  by  them.  Whether  the  plaintiffs'  witnesses  who  testi- 
fied to  the  correctness  of  the  entries  be  considered  as  clerks  or 
as  partners,  their  testimony  as  to  the  correctness  of  the  books 
was  admissible. 

"As  a  general  rule,  the  testimony  of  persons  who  have  knowl- 
edge of  the  facts  from  which  the  books  are  made  up  is,  as  to 
those  facts  primary  evidence,  and  the  books  themselves  are 
admissible  only  by  way  of  corroboration.  The  provisions  of 
the  .code  are  designed  to  admit  books  of  original  entries  as 
direct  and  primary  evidence  in  cases  such  as  those  where  per- 
haps the  fact  of  the  delivery  of  specific  articles  included  in  an 
account,  or  the  performance  of  particular  services,  can  not 
otherwise  be  definitely  proved,  and  in  similar  cases."  13  App. 
238  (79  S.  E.  44). 

SEC.  114.  MEMORANDA  COPIED  FKOM  BOOKS.  "The  plain- 
tiff, while  on  the  stand  as  a  witness,  made  use  of  certain  memo- 
randa which  had  been  copied  from  his  books,  relating  to  the 
amount  of  the  receipts  and  expenses  of  his  business.  Error  is 
assigned  on  the  refusal  of  the  court  to  allow  his  counsel  to  ask 
him  'if  he  would  swear  positively  from  the  memoranda  to  the 
correctness  of  the  items  thereon;  the  court  ruling  that  the  wit- 
ness could  use  the  memoranda  to  refresh  his  recollection,  but 
must  then  swear  from  his  recollection  as  thus  refreshed,  and  not 
from  the  memoranda.  The  witness  would  have  sworn  positively 
from  the  memoranda  to  the  correctness  of  the  items  thereon.' 
The  question  was  in  the  terms  of  the  Civil  Code,  §5284,  on 
which  counsel  for  the  plaintiff  in  error  relied.  That  section  is 
as  follows :  'A  witness  may  refresh  and  assist  his  memory  by 
the  use  of  any  written  instrument  or  memorandum,  provided 
he  finally  speaks  from  his  recollection  thus  refreshed,  or  is 
willing  to  swear  positively  from  the  paper.'  Apparently  this 
code  section  is  not  based  on  any  statute,  but  is  a  codification  of 
the  general  law  existing  before  its  adoption.  Its  provisions  are 
quite  broad,  but  we  think  it  does  not  cover  memoranda  which 
a  witness  does  not  know  to  be  true  and  which  he  has  never  known 
to  be  true.  It  includes  any  written  instrument  or  memorandum, 
and  it  is  not  essential  that  the  memoranda  should  have  been 
made  by  the  witness  himself.  1  Gr.  Ev.  (16th  ed.)  439  a  (2). 
It  is  essential,  however,  that  he  should  at  some  time  have  had 
personal  knowledge  of  the  correctness  of  the  memoranda."  118/ 
427,  430  (45  S.  E.  317). 


42  EVIDENCE 

SEC.  115.  COMMUNICATIONS  BETWEEN  ATTORNEY  AND  CLI- 
ENT. "The  Civil  Code,  §5198  [5785]  declares  that  certain 
admissions  and  communications  are,  from  public  policy,  to  be 
excluded  as  evidence.  Among  these  are  communications  between 
attorney  or  counsel  and  client.  Section  5271  [5860]  of  the 
same  code  gives  the  rule  more  explicitly.  Its  provisions  are, 
that  'Xo  attorney  shall  be  competent  or  compellable  to  testify 
in  any  court,  for  or  against  his  client,  to  any  matter  or  thing, 
knowledge  of  which  he  may  have  acquired  from  his  client,  by 
virtue  of  his  relation  as  attorney  or  by  reason  of  the  anticipated 
employment  of  him  as  attorney,  but  shall  be  both  competent  and 
compellable  to  testify,  for  or  against  his  client,  as  to  any  matter 
or  thing,  knowledge  of  which  he  may  have  acquired  in  any  other 
manner.'  Section  5199  [5786]  further  enlarges  the  rule  relat- 
ing to  privileged  communications,  and  declares  that  'Communi- 
cations to  any  attorney,  or  his  clerk,  to  be  transmitted  to  the 
attorney  pending  his  employment,  or  in  anticipation  thereof, 
shall  never  be  heard  by  the  court.'  The  rules  established  by 
those  sections  of  our  code  are,  in  their  effect  the  same  as  existed 
at  common  law,  except  that  under  the  common-law  rule  the 
attorney  could  not  be  compelled  to  testify  as  to  communications, 
nor  to  disclose  papers  or  letters,  or  entries  made  by  .him  in  that 
capacity,  while  our  statute  goes  to  the  extent  of  declaring  that 
the  attorney  shall  not  be  competent  or  compellable  to  testify  for 
or  against  his  client.  Lord  Chancellor  Brougham  declared  that 
the  rule  was  not  founded  on  any  particular  importance  which 
the  law  attributes  to  the  business  of  legal  professors,  or  any 
particular  disposition  to  afford  them  protection,  but  out  of  re- 
gard to  the  interests  of  justice  which  could  not  be  upheld,  and  to 
the  administration  of  justice  which  could  not  go  on,  without  the 
aid  of  men  skilled  in  jurisprudence,  in  the  practice  of  the  courts, 
and  in  matters  affecting  rights  and  obligations  which  form  the 
subject  of  judicial  proceeding;  and  that  if  such  communications 
were  not  protected,  no  man  would  consult  a  professional  adviser 
with  a  view  to  his  defense,  nor  safely  go  into  a  court  either  to 
obtain  redress  or  to  defend  himself.  1  Myl.  &  K.  102  ;  Id.  94, 
95.  Mr.  Greenleaf,  in  the  1st  volume  of  his  Law  of  Evidence, 
§239,  says  that  this  privilege  is  not  personal  to  the  attorney, 
but  is  a  rule  of  law  for  the  protection  of  the  client.  Mr.  Weeks, 
in  his  Treatise  on  Attorneys  and  Counsellors  at  Law,  §144, 
gives  the  general  rule  established  by  the  weight  of  authority  on 
this  subject  of  follows :  'An  attorney  is  privileged  from  giving 
evidence  of  any  confidential  communication  made  to  him  by  his 


EVIDENCE  43 

client,  or  concerning  which  he  has  been  informed  in  his  profes- 
sional capacity  as  attorney  for  the  client.  The  privilege  is  that 
of  the  client,  and  not  that  of  the  attorney.'  The  same  author 
(§151)  says,  on  authority,  that  the  rule  does  not  extend  to 
information  acquired  by  him  in  any  other  way  than  by  such 
confidential  communication  by  the  client ;  and  Mr.  Best,  in  his 
work  on  the  Principles  of  Evidence,  §581,  says  that  the  privi- 
lege does  not  extend  to  matters  of  fact  which  the  attorney  knows 
by  any  other  means  than  confidential  communications  with  his 
client,  though  if  he  had  not  been  employed  as  attorney  he  proba- 
bly would  not  have  known  them.  It  appears  that  Mr.  Key  was 
an  attorney,  that  he  was  employed  as  such  by  the  deceased  at 
the  time  the  deed  wTas  wrritten.  It  is  thereby  established  that 
the  relation  of  client  and  attorney  did  exist  at  the  time  the 
deed  was  executed  between  Stone  and  the  intestate. 

"It  is,  however,  contended  that,  inasmuch  as  the  privilege 
which  the  law  allowed  is  for  the  benefit  of  the  client  and  not 
counsel,  the  rule  relates  only  to  confidential  communications 
existing  because  of  such  relation;  that  inasmuch  as  the  com- 
munication made  by  the  client  to  the  attorney,  was  in  the  pres- 
ence of  the  other  party  to  the  contract,  it  was  not  in  law  such 
a  confidential  communication  as  could  not  be  given  in  evidence 
by  the  attorney.  There  seems  to  be  very  much  force  in  this 
contention.  The  idea  which  seems  to  be  involved  in  the  estab- 
lishment of  the  rule  is  not  that  of  mere  secrecy.  It  is  not  that 
the  client  has  imparted  to  the  attorney  information  about  a 
matter  which  is  to  be  concealed  from  the  public,  but  is  founded 
on  altogether  a  different  principle.  Having  respect  solely  to 
the  free  and  unembarrassed  administration  of  justice,  and  to 
the  security  of  all  men  in  the  enjoyment  of  their  civil  rights, 
no  man  is  under  a  legal  obligation  to  disclose  facts  or  circum- 
stances which  would  render  questionable  his  demand  for  a  par- 
ticular right,  or  impair  his  defense  to  another's  demand.  Origin- 
ally, suitors  and  defendants  appeared  personally  before  the 
tribunal  which  interpreted  and  administered  the  law.  Subse- 
quently, however,  when  the  application  of  legal  principles  and 
the  forms  of  procedure  became  more  implicated  and  intricate, 
the  services  of  persons  having  knowledge  of  the  one  and  skill 
in  the  other  came  into  demand,  and,  to  fully  protect  the  rights 
of  parties  litigant,  the  procurement  of  the  services  of  person-; 
skilled  in  the,  law  became  universal.  No  man  being  compelled 
himself  to  disclose  the  weakness  of  his  case,  it  followed,  almost 
as  a  necessary  consequence,  that  the  person  who  represented 


44  EVIDENCE 

him  and  presented  that  case  would  not  do  so.  If  it  were  other- 
wise, the  free  administration  of  justice  would  be  restricted  and 
the  ascertainment  and  enforcement  of  rights  endangered.  There- 
fore when,  in  order  to  obtain  the  measure  of  his  rights,  the 
client  resorted  to  a  representative  who  could  better  judge  the 
merits  of  his  case,  and  disclosed  to  him  the  facts  upon  which 
the  ascertainment  of  his  rights  must  depend,  the  law  of  public 
policy  put  a  seal  upon  the  lips  of  his  counsel  just  as  effectually 
as  the  interest  of  the  client  placed  a  ban  upon  his  own  dis- 
closure ;  and,  to  the  credit  of  the  profession  be  it  said,  as  a  rule 
almost  without  exception,  the  private  matters  of  the  client  com- 
municated to  counsel  are  held  sacred.  There  is  no  reason  why 
an  attorney  may  not  be  called  as  a  witness  to  give  evidence  of 
facts  within  his  knowledge.  In  the  administration  of  justice 
the  courts  will  compel  him  so  to  do,  and  to  place  before  the  jury 
his  knowledge  of  any  fact  in  issue,  except  as  to  those  which  his 
client,  depending  on  him  for  advice  and  direction,  has  seen  fit 
to  communicate  in  order  to  obtain  the  full  measure  of  his  rights. 
These  are  deemed  confidential  in  the  interest  of  the  client,  and 
privileged  for  his  protection,  but  when  communicated  to  other 
persons  and  when  others  are  allowed  the  same  opportunities  of 
knowledge  that  the  attorney  possesses,  the  confidential  relation 
necessarily  does  not  exist,  and  the  privilege  does-  not  attach." 
111/48-51  (36  S.  E.  321). 

"A  communication  which  was  made  by  a  prisoner  under 
arrest,  to  an  attorney  who  it  is  at  the  time  anticipated  will  be 
employed  to  represent  the  cause  of  the  person  making  such  com- 
munication, can  not,  on  the  trial  either  of  the  person  making 
the  communication,  or  of  another,  be  proved  by  the  testimony 
of  the  attorney.  Civil  Code,  §5199."  114/111,  112  (39 
S.  E.  948). 

"Testimony  of  a  client  as  to  advice  given  to  him  by  his  coun- 
sel is  incompetent,  and,  on  timely  motion,  should  be  excluded. 
Communications  between  attorney  and  client  are  'excluded  from 
public  policy.' "  Civil  Code,  §5785.  17  App.  198  (86  S.  E. 
425). 

SEC.  116.  WOMEN  WITNESSES.  As  a  general  rule,  women 
can  not  be  compelled  to  attend  court  in  a  civil  case  upon  a 
subpoena.  A  case  can  not  be  continued  for  the  absence  of  a 
woman  witness  who  has  been  subpcened  and  does  not  attend. 
This,  however,  is  a  matter  within  the  discretion  of  the  court. 
In  such  case,  the  interrogatories  of  the  woman  witness  should 
be  taken.  In  a  case  where  there  are  special  reasons  why  a 


EVIDENCE  45 

woman  witness  should  attend,  application  can  be  made  to  the 
judge  of  the  court  and  he  has  the  power  to  compel  her  attend- 
ance upon  a  proper  showing  made.  There  should  be  some  special 
reason  set  forth  in  such  application,  and  the  necessity  of  her 
attendance  should  be  made  to  appear.  Such  application  should 
be  made  in  writing  to  the  judge,  the  reasons  set  forth  and  verified 
by  affidavit  when  he  would  have  a  right  to  issue  the  proper 
order. 

"The  plaintiff  had  the  right  to  take  the  testimony  of  a  female 
witness  by  interrogatories.  If  the  defendant  had  desired  to 
have  her  examined  before  the  court  and  jury,  the  judge  had 
power  to  compel  her  presence,  and  doubtless  would  have  done 
so  upon  proper  application,  and  the  assignment  of  sufficient 
reasons  for  the  necessity  of  her  attendance."  83/351  (9  S.  E. 
683). 

"That  the  court  refused  to  compel  two  female  witnesses  to 
come  into  court  and  testify,  or  to  continue  the  case  that  their 
interrogatories  might  be  taken,  was  not  error  where  it  was  not 
properly  shown  what  the  witnesses  would  testify,  or  that  their 
testimony  was  material.  If,  upon  good  reasons  shown  why  it 
is  necessary  for  such  witnesses  to  attend  in  person,  what  they 
will  testify,  and  the  materiality  of  such  testimony,  the  court 
is  satisfied  that  it  is  necessary,  in  furtherance  of  justice,  for 
them  to  attend,  an  order  should  be  issued  requiring  them  to  do 
so.  But  while  the  statvite  permitting  the  interrogatories  of  such 
witnesses  to  be  taken  does  not  exempt  them  from  attendance 
upon  court,  its  provisions  should  be  followed  unless  it  be  shown 
to  the  court  that  it  is  necessary  to  have  their  personal  attend- 
ance." 85/298  (11  S.  E.  706). 

SEC.  117.  PKODUCTION  OF  BOOKS,  ETC.,  MAY  BE  COM- 
PELLED. "The  several  courts  shall  have  power  on  the  trial  of 
any  cause  cognizable  before  them  respectively,  on  notice  and 
proof  thereof  being  previously  given  by  the  opposite  party  or 
his  attorney,  to  require  either  party  to  produce  books,  writings, 
and  other  documents  in  his  possession,  power,  custody,  or  con- 
trol, which  shall  contain  evidence  pertinent  to  the  cause  in 
question,  under  circumstances  where  such  party  might  be  com- 
pelled to  produce  the  same  by  the  ordinary  rules  of  proceeding 
in  equity."  Code,  $5837. 

SEC.  118.  PAPER  IN  COURT.  "As  a  general  rule  (subject 
to  exceptions  for  privilege),  where  it  is  shown  that  a  paper 
which  would  be  evidence  material  to  the  issue  is  in  the  court, 


46  EVIDENCE 

it  is  the  duty  of  the  judge  to  require  the  production  of  such 
documentary  evidence  instanter.  And  it  is  the  duty  of  the 
court,  where  the  alleged  holder  of  such  paper  is  there  present, 
to  grant  a  proper  request  for  an  investigation  to  determine 
whether  such  paper  is  in  fact  in  court,  and  whether  its  produc- 
tion shall  be  required."  1  App.  514  (58  S.  E.  63). 

SEC.  119.  PAPEE  SURREPTITIOUSLY  SECURED.  "Ejectment 
was  brought  by  certain  persons  as  trustees  of  a  church;  the 
defendant  died;  when  the  case  was  called,  his  executor,  though 
a  year  had  not  elapsed,  was  voluntarily  made  a  party ;  during 
the  trial,  counsel  for  plaintiffs  stated  that  a  deed  made  to  the 
church,  or  former  trustees  thereof,  had  been  supposed  to  be  lost, 
but  had  been  found  by  the  deceased  defendant,  and  was  in 
possession  of  counsel  for  defendant;  he  introduced  a  witness 
who  swore  that  the  deceased  defendant  had  told  him  about  a 
year  previously  of  the  finding  of  the  deed,  and  charged  him  to 
keep  it  secret,  which  he  had  done  until  since  the  trial  began; 
counsel  for  plaintiffs  moved  to  require  counsel  for  defendant  to 
deliver  the  deed ;  the  court  refused  to  do  so,  or  to  require  counsel 
for  defendant  to  answer  questions  as  to  his  possession ;  plaintiffs 
then  moved  for  a  continuance  to  give  time  for  a  notice  to  pro- 
duce ;  it  was  refused : 

"Held,  that  this  was  error.  Wherever  a  paper  is  in  court 
belonging  to  one  party  and  surreptitiously  secured  and  secreted 
by  the  other,  and  handed  to  counsel,  not  to  prepare  a  legitimate 
defence  by  the  use  of  a  link  in  the  title,  but  to  keep  under  cover 
of  privilege  and  confidence,  semble  that  its  instant  delivery  to 
the  party  to  which  it  belonged  should  be  ordered."  TO/779, 
780. 

SEC.  120.  BOOK  IN  POSSESSION  OF  WITNESS.  "Where  a 
witness  referred  to  a  book  in  his  pocket  as  containing  a  state- 
ment of  an  account  which  was  material  to  the  issue  then  being 
tried,  it  was  error  in  the  court  not  to  require  the  same  to  be 

produced."     55/223. 

SEC.  121.  PAPER  BELONGING  TO  WIFE  FOR  USE  AGAINST 
HUSBAND.  "The  production  of  a  paper  belonging  to  a  wife, 
and  which  is  in  the  custody  either  of  herself  or  her  attorney, 
can  not  be  compelled  for  the  purpose  of  using  the  same  as 
evidence  for  the  State  in  the  trial  of  a  criminal  case  against 
her  husband  by  serving  a  subprena  duces  tecum,  or  other  process, 
either  upon  the  wife  or  the  attorney,  or  upon  both.  Under  such 


EVIDENCE  47 

circumstances,  the  paper  in  question  is  so  far  inaccessible  as 
that  secondary  evidence  of  its  contents  is  admissible."  100/41 
(28  S.  E.  26). 

SEC.  122.  NOTICE  TO  PRODUCE  PAPERS.  "The  notice  re- 
quired by  the  preceding  section  shall  be  in  writing,  signed  by 
the  party  seeking  the  production  of  the  books  or  other  writings, 
or  his  attorney,  and  served  on  the  adverse  party  or  his  attorney, 
when  returnable  to  the  superior  courts,  ten  days,  and  when 
returnable  to  a  justice's  court,  five  days,  before  the  production 
of  the  books  or  other  documents  shall  be  required :  Provided, 
such  party  resides  in  the  county  where  the  suit  is  pending;  if 
out  of  said  county  and  within  one  hundred  miles,  fifteen  days ; 
if  over  one  hundred  miles  and  less  than  two  hundred  miles, 
twenty  days ;  and  if  beyond  the  limits  of  this  State,  sixty  days." 
Code,  §5838. 

SEC.  123.  FORM  OF  NOTICE  TO  PRODUCE.  (See,  also,  Part 
II,  pages  663,  664,  665.) 

r  ""I        Tx  THE  JUSTICE  COURT  OF  THE 

JOHN  DOE  -r\  n    ~\r  n 

I  DISTRICT,  G.  M.,  OF COUNTY, 

T,  TERM,  19 

RlCHARD  KOE  0 

SUIT  ON  ACCOUNT. 
To  JOHN  DOE: 

You   are  hereby   notified   and   required   to   produce    at   the 

Term,  19.  .,  of  said  Court,  which  is  held  on 

the  ....  day  of ,  from  day  to  day,  and  from 

term  to  term,  until  said  case  is  disposed  of,  a  certain  note  made 
by  John  Smith  to  Richard  Roe,  endorsed  by  Richard  Roe,  to 

you,  dated ,  19.  .,  for  the  sum' of  Fifty  ($50.00) 

dollars,  principal,  with  interest  from  date,  at  eight  (8)  per 
cent.,  and  signed  by  John  Smith,  and  due  thirty  days  after 
date,  said  note  then  and  there  on  the  trial  of  said  case  to  be 
used  as  material  and  pertinent  evidence  for  the  defendant  in 

said  case.     This ,  19.  .. 

RICHARD  ROE. 
GEORGIA, COUXTY. 

Personally  came  before  the  undersigned  attesting  officer, 
Richard  Roe,  who,  being  duly  sworn,  on  oath  says  that  ho  has 
reason  to  believe  that  the  note  called  for  in  the  above  notice  to 
produce  is  or  has  been  in  existence;  that  it  is  in  the  possession, 
power  or  control  of  John  Doe,  and  that  it  is  material  to  the 


48  EVIDENCE 

issue  in  the  above  named  and  stated  case,  and  he  makes  this 
statement  in  order  to  render  said  notice  available. 

RIG  HARD  ROE. 

Sworn   to   and   subscribed   before 
me.  this    .  19.  . 


J.  P. 

Or,  the  party's  attorney  can  make  his  statement  in  his  place 
and  append  it  instead  of  the  affidavit: 
GEORGIA, COUNTY. 

Comes  now ,  and  states  in  his  place  that  he  is 

attorney  for  Richard  Roe  in  the  above  named  and  stated  case, 
and  that  he  has  reason  to  believe  that  the  said  note  called  for 
in  the  aobve  notice  is  or'has  been  in  existence  and  that  it  is  in 
the  possession,  power  or  control  of  John  Doe,  and  that  it  is 
material  to  the  issue  in  the  above  named  and  stated  case,  and 
he  makes  this  statement  in  order  to  render  said  notice  available. 
This ,19... 


Attorney  for  Richard  Roe. 

It  will  be  noticed  that  the  usual  practice  is  to  make  out  the 
notice  without  the  affidavit  of  the  party  or  the  statement  of  the 
attorney  in  his  place,  and  that  upon  the  refusal  of  the  party 
notified  to  produce  as  required,  then  the  affidavit  is  made  or 
the  statement  of  the  attorney.  The  strict  letter  of  the  law 
s'ays  before  this  notice  is  available,  these  things  must  be  done. 
It  is  certainty  the  safer  rule  to  follow  the  letter  of  the  statute. 
A  copy  of  the  notice  should  be  made  and  an  affidavit  of  service 
made  thereon  by  the  party  serving  it,  which  might  be  in  this 
form: 
GEORGIA, COUNTY. 

Personally  came  before  the  undersigned  attesting  officer, 
William  Smith,  who,  being  duly  sworn,  on  oath  says  that  he 
served  the  original  notice,  of  which  the  within  is  a  true  copy, 

on  John  Doe  personally  on ,  19 ... 

WILLIAM  SMITH. 
Sworn   to   and   subscribed   before 

me,  this    .  19.  . 


J.  P. 

The  better  plan  and  the  one  that  is  usual  amongst  attorneys 
is  to  procure  an  acknowledgment  of  service  on  the  original  one 


EVIDENCE  49 

from  the  opposing  counsel,  and  such  acknowledgment  of  serv- 
ice may  be  in  this  form : 

GEORGIA, COUNTY. 

Due  and  legal  service  is  hereby  acknowledged  of  the  within 
notice  to  produce  and  all  other  and  further  service,  and  notice 
is  hereby  waived.  This ,  19 ... 


Attorney  for  John  Doe. 

In  such  case  it  is  usual  and  proper  to  give  the  opposing 
counsel  a  copy  of  the  notice  so  that  he  may  know  what  his  client 
is  expected  to  produce. 

SEC.  124.  FURTHER  PROCEDURE  ON  NOTICE  TO  PRODUCE. 
On  the  call  of  the  case,  it  is  usual  before  the  party  seeking  the 
production  of  the  books  or  papers,  to  call  upon  opposing  coun- 
sel to  respond  to  the  notice.  If  he  produces  the  evidence 
called  for,  that  is  an  end  of  the  matter.  In  some  jurisdictions, 
an  oral  response  is  made  to  the  motion  where  the  evidence 
called  for  is  not  produced,  but  the  better  plan  is  to  make  a  re- 
sponse in  writing.  Some  judges  go  to  the  extent  of  requiring 
a  written  response  to  be  made  and  filed  before  the  call  of  the 
case.  However,  if  a  written  response  is  to  be  made,  it  should 
be  ready  at  the  time  the  call  for  the  production  of  the  papers 
is  made,  and  in  such  case  the  following  might  be  used  as  a 
response : 

•^  IN  THE  JUSTICE  COURT  OF  THE  . 
JOHN  DOE  T\  n    •»«•  n 

DISTRICT,  G.  M.,  OF   COUNTY, 

vs.  >•  T'          -,ft 

-r,  -r,  TERM,  19 ... 

RICHARD  ROE  c  . 

J  SUIT  ON  ACCOUNT. 

Now  comes  John  Doe,  the  plaintiff  in  the  above  named  and 
stated  case,  and  in  response  to  the  notice  served  upon  him  by 
Richard  Roe,  the  defendant,  to  produce  upon  the  trial  of  said 
case  a  certain  note  made  to  Richard  Roe  by  William  Smith, 

on ,  19.  .  .,  for  $50.00  principal,  and  due 

19.  .,  this  affiant  says  that  said  note  is  not  in,  the  possession, 
power  or  control  of  affiant,  and  was  not  at  the  time  of  the  serv- 
ice of  said  notice,  and  has  not  been  since  said  time,  and  affiant 
makes  this  as  a  response  in  full  to  said  notice. 

JOHN  DOE. 
Sworn   to    and   subscribed   before 

me,  this    , 

19... 

J.  'P.' 


50  EVIDENCE 

SEC.  125.  SUFFICIENCY  OF  DESCRIPTION.  "The  notice  to 
produce,  calling  for  the  garnishee's  stock-book,  cash  book,  origi- 
nal book  or  books  of  entry,  journal  and  ledger,  showing  the  ac- 
count of  the  defendant  with  the  garnishee,  and  any  and  all 
books  showing  the  relation  of  the  defendant  to  the  garnishee, — 
is  too  extensive  in  range,  and  in  part  too  vague  in  description. 
The  court,  before  peremptorily  requiring  the  production  of 
such  books,  should  be  satisfied  of  the  necessity  for  them;  and 
none  should  be  required  to  be  produced  except  those  (if  any) 
showing  dealings  between  the  garnishee  and  the  defendant.' 
85/431  (11  S.  E.  775). 

"But  the  order  of  the  court  in  the  present  case  was  illegal 
for  another  reason.  The  notice  served  upon  the  defendants 
required  the  production  of  all  'contracts,  agreements,  deeds, 
and  liens  made  between  you,  and  also  all  deeds  and  muniments 
of  title  imder  which  you  claim  the  lot  in  dispute  or  any  inter- 
est or  part  thereof.'  We  think  the  latter  part  of  the  notice 
was  sufficiently  definite.  The  rule  is  that  the  description  is 
sufficiently  definite  if  the  party  who  is  called  on  to  produce  o*1 
what  he  must  give  an  inspection  of,  and  if  the  court  can  deter- 
mine the  propriety  of  allowing  the  discovery  or  inspection 
sought.  Applying  this  rule,  a  notice  to  produce  all  the  titles 
and  papers  under  which  you  claim  title  to  a  particular  lot  of 
land  shows  on  its  face  that  the  inspection  ought  to  be  allowed. 
On  the  other  hand,  a  notice  to  produce  all  the  contracts,  agree- 
ments, deeds,  and  liens  made  between  the  defendants  was  cer- 
tainly too  vague  and  uncertain  in  description  and  too  extensive 
in  range.  It  seeks  a  roving  investigation  into  all  the  papers 
made  between  the  defendants',  without  even  intimating  that  an 
inspection,  if  allowed,  would  disclose  anything  to  the  plaintiff's 
advantage.  It  was  just  such  a  notice  as  was  given  in  the  case 
of  Parish  vs.  Weed  Co.,  [79/682  (7  S.  E.  138)  ]  cited  supra, 
where  the  defendant  was  called  on  to  produce  'all  books  and 
papers  touching  business  transacted  in  Georgia  and  all  receipts 
by  attorneys,  etc.,  connected  with  its  business  in  Savannah.' 
It  was  there  held  that  this  notice  was  too  vague  in  description, 
and  too  extensive  in  range,  to  require  a  response.  The  descrip- 
tion in  the  notice  must  be  with  sufficient  particularity  to  enable 
the  court  to  determine  the  propriety  of  compelling  the  produc- 
tion sought,  and  it  must  also  appear  that  the  evidence  to  be 
thus  acquired  would  be  competent  and  tend  to  prove  the  exist- 
ence of  the  claim  made  by  the  party  requiring  production. 
*  *  *  The  court  could  not  tell  whether  the  papers  called 


EVIDENCE  51 

for  in  the  first  part  of  the  notice  would  aid  the  plaintiff  in  es- 
tablishing its  case;  and  it  was  absolutely  impossible  to  deter- 
mine whether  all  the  contracts,  deeds,  etc.,  made  between  the 
defendants,  would  have  been  material  evidence  on  the  trial  of 
the  case.  The  order  of  the  court,  therefore,  in  requiring  the 
production  of  all  the  papers  called  for  in  the  plaintiff's  notice, 
was  too  broad,  in  not  being  limited  to  the  documents  which 
were  sufficiently  described.  Ilamby  Mines  vs.  Findley,  85 
Ga.  431  [11  S.  E.  775].  It  would  have  been  competent,  how- 
ever, for  the  court  to  have  specified  such  of  the  writings  as 
should  have  been  produced.  It  was  no  ground  of  objection  to 
the  entire  notice  that  part  of  it  did  not  describe  the  documents 
called  for  with  sufficient  particularity.  Parish  vs.  Weed  Co., 
supra."  104/395,  401  (30  S.  E.  878). 

SEC.  126.  PEREMPTORY  ORDER.  The  answer  of  the  party 
notified  to  produce  papers,  books  or  documents,  if  the  judge 
should  determine  that  such  party  is  in  default  and  that  he  has 
in  his  possession,  power  or  control,  the  evidence  called  for  by 
the  notice  and  that  the  same  is  material,  in  such  case  it  is  the 
duty  of  the  judge  to  make  a  peremptory  order  reciting  the  fact 
that  the  defendant  notified  has  failed  to  comply  with  the  notice 
to  produce  and  after  giving  such  party  reasonable  opportunity 
to  order  the  production  of  such  evidence.  In  making  this  order 
it  is  the  duty  of  the  judge  to  determine  what  particular  part 
of  the  evidence  called  for  the  party  serving  the  notice  has  a 
right  to  have  produced.  He  must  determine  what  portion  of 
it  has  been  properly  described  and  identified  as  well  as  what  is 
material.  Then  he  must  give  the  party  in  default  reasonable 
opportunity  to  produce  it.  The  judge  has  before  him  the 
notice  to  produce  as  well  as  the  answer  of  the  party  notified, 
and  this  would  seem  to  be  all  the  pleading  that  is  necessary 
upon  which  to  base  the  order.  Then  the  following  might  be  a 
proper  order: 

T          P.  ^        IN  THE  JUSTICE  COURT  OF  THE 

DISTRICT,  G.  M.,  OF COUNTY, 

TERM,  19 

RICHARD  ROE  0  A 

J       SUIT  ON  ACCOUNT. 

It  being  made  to  appear  to  the  Court  that  Richard  Roe,  the 
defendant  in  the  above  named  and  stated  case,  served  upon  the 
plaintiff,  John  Doe,  in  due  time  a  notice  to  produce  a  certain 
letter  described  in  the  notice,  and  it  further  appearing  that 
said  letter  is  in  the  possession,  power  and  control  of  the  said 


52  EVIDENCE 

John  Doe,  and  that  he  fails  and  refuses  to  produce  the  same 
as  called  for  by  said  notice,  it  is  ordered  that  the  said  John 
Doe  is  in  contempt  of  this  Court,  and  that  he  produce  said 

document  in  Court,  at  nine  o'clock,  A.  M.,  on :  . 

.  .  .  .,  19.  .,  as  in  default  the  Court  will  give  judgment  against 
said    plaintiff,     John    Doe,     as    in    case    of    nonsuit.     This 
,  19. 


J.  P. 

If  the  plaintiff  at  the  time  fixed  in  the  order  should  fail  and 
refuse  to  produce  the  document  called  for,  then  it  would  be 
the  duty  of  the  Court  on  motion  of  defendant  to  pass  a  further 
order  which  might  be  in  the  following  form : 

"^        IN  THE  JUSTICE  COURT  OF  THE 

JOHN  DOE  T\  r\    -\r  n 

DISTRICT,,  G.  M.,  OF COUNTY, 

vs.  }>-  T  -m 

T-,  -,-,  IERM.  19.  ... 

RICHARD  ROE  0  . 

J  SUIT  ON  ACCOUNT. 

In  the  above  named  and  stated  case,  the  plaintiff,  John  Doe, 
having  been  required  by  peremptory  order  to  produce  the  let- 
ter called  for  in  the  notice,  and  he  having  been  adjudged  in 
contempt  of  this  Court,  and  having  been  ordered  to  produce 
said  letter  on  this  day  and  at  this  term,  and  having  failed  so 
to  do,  on  motion  of  defendant  it  is  ordered  that  judgment  be, 
and  is  hereby,  rendered  against  the  plaintiff  as  in  case  of  non- 
suit, and  said  case  is  hereby  dismissed  and  judgment  is  rendered 

in  favor  of  the  defendant  against  the  plaintiff  for 

dollars  and cents,  costs  of  suit.     This , 

19... 

J.  P. 

SEC.  127.  CONSEQUENCES  OF  FAILURE  TO  PRODUCE  PAPERS. 
''If  the  plaintiff  or  his  attorney,  being  so  notified,  shall  fail  or 
refuse  to  comply  with  such  order,  the  court  shall,  on  motion, 
give  judgment  against  such  plaintiff  as  in  case  of  nonsuit ;  and 
if  the  defendant  shall  fail  or  refuse  to  comply  therewith,  the 
court,  on  motion,  shall  give  judgment  against  such  defendant 
as  in  case  of  judgment  by  default."  Code,  §5839. 

SEC.  128.  CONTINUANCE.  "In  case  of  the  service  of  any 
notice,  as  aforesaid,  when  it  shall  appear  to  the  satisfaction  of 
the  court,  by  an  affidavit  of  the  party  or  otherwise,  that  such 
party  has  used  due  and  proper  diligence,  and  can  not  procure 
the  books,  writings,  or  other  documents  required,  the  cause  may 
be  continued  at  the  instance  of  the  party  notified."  Code,  §5840. 


EVIDENCE  53 

SEC.  129.  AFFIDAVIT  OF  NON-KESIDEXT.  "When  the  party 
notified  resides  without  the  limits  of  this  State,  but  in  one  of 
the  States  or  Territories  of  the  United  States,  such  party  may 
make  the  oath  required  before  a  commissioner  of  this  State, 
resident  in  such  State  or  Territory,  or  before  any  officer  of 
such  State  or  Territory  in  which  the  party  notified  may  reside, 
who  is  authorized  by  the  laws  of  such  State  or  Territory  to 
administer  an  oath,  which  shall  be  sufficient:  Provided,  the 
official  character  of  the  officer  attesting  said  affidavit  shall  be 
properly  proved  by  the  certificate  of  the  Governor,  the  secre- 
tary of  State,  the  chancellor,  or  the  keeper  of  the  great  seal  of 
the  State  or  Territory  in  which  such  affidavit  is  made."  Code, 
§5841. 

SEC.  130.  NOTICE,  How  MADE  AVAILABLE.  "Before  the 
notice  provided  for  in  the  preceding  sections  shall  be  available, 
the  party  giving  it,  or  his  agent,  must  make  oath  (or  his  attor- 
ney state  in  his  place)  that  he  has  reason  to  believe  that  the 
paper  required  is  or  has  been  in  existence ;  that  it  is  in  the  pos- 
session, power,  or  control  of  the  person  notified,  and  that  it  is 
material  to  the  issue."  Code,  §5842. 

SEC.  131.  COURT  HAS  POWER  TO  COMPEL  THE  PRODUC- 
TION OF  ANY  PAPER  OR  DOCUMENT  IN  THE  POSSESSION  OF  ANY 
PERSON  PRESENT  IN  COURT.  "The  notice  to  produce  having 
been  perfected  by  proof  which  fulfilled  the  requirements  of 
section  5842  of  the  Civil  Code,  the  court  did  not  err  in  refus- 
ing to  strike  the  notice. 

"The  trial  court  has  the  power  to  require,  and  should  require, 
the  production  of  any  pertinent  documentary  evidence  which 
may  illustrate  the  issue,  and  which  is  within  the  power  or  cus- 
tody of  any  person  then  personally  in  court,  except  where  the 
disclosure  is  prevented  by  privilege ;  and  inasmuch  as  the  de- 
fendant's counsel  did  not  expressly  claim  or  otherwise  insist 
upon  his  privilege,  the  ruling  requiring  him  to  produce  certain 
papers  mentioned  in  the  notice  to  produce  were  inadmissible, 
the  court  is  harmless,  because,  after  the  papers  were  produced 
the  court  did  not  permit  the  introduction  of  any  writing  except 
original  papers."  12  App.  392  (77  S.  E.  316). 

In  the  opinion,  of  which  the  above  are  headnotes,  it  is  said : 

"The  defendant  excepted  pendente  lite  to  the  rulings  of  the 
trial  judge  upon  a  notice  to  produce  which  the  plaintiff  had 
caused  to  be  served  upon  the  defendant's  counsel.  The  notice 
to  produce  was  signed,  but  was  not  sworn  to  by  the  plaintiff  or 


54  EVIDENCE 

his  counsel,  and  upon  that  ground,  and  for  the  reason  that  there 
was  no  statement  that  the  papers  required  by  the  notice  were  in 
existence  or  in  tlie  custody  or  control  of  the  defendant,  as  well 
as  upon  the  ground  that  the  notice  was  otherwise  defective,  the 
defendant  moved  to  strike  and  dismiss  it.  In  certifying  the  ex- 
ception to  his  ruling  upon  the  motion  to  strike  the  notice  to 
produce,  the  court  states  that  when  the  motion  to  strike  the 
notice  was  made,  counsel  for  the  plaintiff  arose  and  stated  in 
his  place  the  facts  required  under  section  5842  of  the  Civil 
Code  of  1910,  and  thereupon  the  Court  held  the  notice  good. 
We  think  this  ruling  was  a  proper  disposition  of  the  motion  to 
strike,  which  was  in  effect  a  general  demurrer;  and  the  other 
special  objections  to  the  notice  were  not  meritorious. 

"Exception  is  also  taken  to  the  court's  ruling  in  passing  a 
peremptory  order  requiring  counsel,  upon  whom  the  notice  to 
produce  had  been  served,  to  produce  such  papers  as  he  had  of 
those  included  in  the  motion  to  produce.  From  the  certificate 
of  the  trial  judge  it  appears  that  after  the  court's  refusal  to 
strike  the  notice,  one  of  the  counsel  for  the  defendant  refused 
to  state  whether  or  not  the  papers  mentioned  in  the  notice  were 
in  his  possession  or  control,  either  in  his  office  or  elsewhere, 
and  thereupon  the  court  peremptorily  required  the  said  coun- 
sel to  produce  these  papers  within  a  reasonable  time.  It  ap- 
pears that  the  peremptory  order  was  passed  at  the  morning 
session  of  the  court,  but  counsel  was  not  required  to  produce 
the  papers  until  the  afternoon  session.  We  find  no  error  in  this 
ruling.  The  court  had  the  right  to  assume  from  counsel's 
refusal  to  respond  to  the  notice  and  deny  the  custody  and  con- 
trol of  the  papers  if  he  did  not  have  them,  that  they  were  in 
his  custody  or  control,  and,  as  was  ruled  in  Moore  vs.  Central 
Ry.  Co.,  1  Ga.  App.  514  (58  S.  E.  63),  the  trial  court  has  the 
power  and  should  require  the  production  of  any  pertinent  docu- 
mentary evidence  which  may  illustrate  the  issue,  and  which  it 
is  within  the  power  of  any  person  then  personally  in  court  to 
produce.  The  trial  judge  certifies  that  after  a  recess  the 
papers  were  produced,  and  so  it  is  questionable  whether  the 
exception  can  be  considered  at  all." 

SEC.  132.  WHEN  NOTICE  is  UNNECESSARY.  "Notice  to 
produce  is  not  necessary  when  the  action  is  brought  to  recover 
the  paper  or  set  it  aside."  Code,  §5843. 

SEC.  133.  PRODUCTION  OF  PAPERS,  REQUIRED  BY  SUB- 
POENA DUCES  TECUM.  "When  any  deed,  writing,  or  other 


EVIDENCE  55 

document  which  it  may  be  necessary  to  use  as  testimony  in  any 
case  may  be  in  the  possession  of  any  person  resident  in  this 
State  who  is  not  a  party  to  the  cause,  the  clerk  of  the  court,  or 
justice  of  the  peace,  in  which  the  cause  is  pending,  shall,  upon 
application  of  the  party  or  his  attorney  desirous  of  using  such 
testimony,  issue  a  subpoena  duces  tecum,  directed  to  the  person 
having  such  book  or  other  document  in  his  possession,  requir- 
ing him  to  appear  and  bring  with  him  into  court  the  paper  de- 
sired to  be  used  as  testimony.  Said  subpoena  shall  be  served 
upon  such  person,  if  a  resident  of  the  county  where  such  case 
is  pending,  ten  days,  and  if  not  a  resident  of  such  county, 
twenty  days,  when  returnable  to  the  superior  courts;  when 
returnable  to  a  justice  court,  five  days.  Service  shall  be  by  a 
sheriff,  constable,  or  some  private  person ;  and  the  official  re- 
turn of  the  sheriff  or  constable,  or  the  affidavit  of  such  private 
person,  shall  be  sufficient  evidence  that  the  same  was  duly 
served.  But  in  all  cases  the  judge  may  require  the  summary 
production  of  any  book  or  document  by  subpoena  duces  tecum, 
where  the  witness  is  able  to  produce  it  and  where  the  ends  of 
justice  require  such  summary  production."  Code,  §5844. 

SEC.  134.  PENALTY  FOE  FAILUBE  TO  OBEY  SUBPOENA 
DDCES  TECUM.  "When  a  subpoena  shall  be  issued  and  served 
as  provided  in  the  preceding  section,  and  the  person  whose  at- 
tendance is  thereby  required  shall  fail  to  comply  with  the  re- 
quisitions thereof,  the  court  shall,  on  motion,  issue  an  attach- 
ment against  such  defaulting  person,  returnable  to  the  next 
term  of  said  court,  and  shall  fine  such  person  in  a  sum  not  ex- 
ceeding three  hundred  dollars,  unless  he  shall  make  a  sufficient 
excuse  for  such  failure  to  be  judged  of  by  the  court;  but  such 
person  shall  nevertheless  be  subject  to  an  action  at  the  instance 
of  the  party  by  whom  he  was  subpoenaed,  for  any  damages 
which  such  party  may  have  sustained  by  reason  of  such  failure  : 
Provided,  that  if  the  person  so  subpoenaed  shall,  within  ten 
days  after  the  service  of  such  subpoena,  deliver  to  the  party  at 
whose  instance  the  subpoena  was  sued  out,  or  his  attorney,  or 
file  in  the  office  of  the  court,  or  justice  of  the  peace,  from 
which  such  subpoena  issued,  the  paper  the  production  of  which 
is  required  by  stich  subpoena,  or  shall  deliver  to  the  said  party 
or  his  attorney,  or  shall  file  in  the  said  office,  his  affidavit  that 
the  said  paper  'is  not  in  his  power,  custody,  possession,  or  con- 
trol, and  that  it  was  not  at  the  time  of  serving  said  subpoena, 
then  such  delivery  and  filing  of  the  paper  so  sought  as  afore- 


56  EVIDENCE 

said,  or  of  such  affidavit,  shall  be  considered  a  full  and  com- 
plete compliance  with  the  requisition  of  such  subpoena  duces 
tecum."  Code,  §5845. 

SEC.  135.  SECONDARY  EVIDENCE.  "In  all  cases  pending 
in  any  court,  where  any  party  shall  pursue  the  course  in  this 
Chapter  pointed  out,  and  is  unable  thereby  to  procure  such  book 
or  other  document,  such  party  shall  be  permitted  to  go  into 
parol  evidence- of  the  contents."  Code,  §5846. 

SEC.  136.  WHEN  TRANSCRIPT  OF  BOOKS  MAY  BE  USED. 
"When  any  person  shall  be  served  with  subpoena  duces  tecum 
to  produce  books  in  his  possession,  to  be  used  as  testimony  on 
the  trial  of  any  cause,  as  hereinbefore  provided,  if  such  per- 
son will  make  oath  that  he  can  not  produce  the  books  required 
without  suffering  a  material  injury  in  his  business,  and  shall 
also  make,  or  cause  to  be  made  out,  a  full  transcript  from  such 
books  of  all  the  accounts  and  dealings  with  the  opposite  party, 
and  have  such  transcript  examined  and  sworn  to  by  an  im- 
partial witness  and  produce  the  same  in  court,  it  shall  be  a  com- 
pliance with  the  notice  or  subpoena  duces  tecum."  Code, 
§5847. 

SEC.  137.  "WHEN  BOOKS  MAY  BE  EXAMINED  BY  COMMIS- 
SIONERS. When  the  transcript  provided  for  in  the  preceding 
section  shall  be  produced  in  court,  if  the  adverse  party  is  dis- 
satisfied therewith,  and  will  swear  that  he  believes  that  the 
books  contain  entries  material  to  him  which  do  not  appear  in 
the  transcript,  the  court  will  grant  him  a  commission  to  be 
directed  to  certain  persons  named  by  the  parties  and  approved 
by  the  court,  to  cause  the  adverse  party  to  produce  the  books 
required  (he  being  sworn  that  the  books  produced  are  all  that 
he  has  or  had  that  answer  to  the  description  in  the  notice), 
and  to  examine  said  books  and  to  transmit  to  the  court  a  full 
and  fair  statement  of  the  accounts  and  entries  between  the  par- 
ties under  their  hand,  which  shall  be  sealed  up  and  transmitted 
to  the  court  as  in  case  of  interrogatories;  which  statement,  when 
received  by  the  court,  shall  be  deemed  a  compliance  with  the 
notice  of  subpoena  duces  tecum."  Code,  §5848. 

SEC.  138.     FORM  OF  SUBPOENA  DUCES  TECUM.     (See,  also, 
Part  II,  page  797.) 
GEORGIA, COUNTY. 

To  John  Smith,  Greeting: 

You  are  hereby  commanded  to  be  and  appear  at  the  Justice 


EVIDENCE  57 

Court  of  the  ....  District,  G.  M.,  of  ....  County,  at  the  usual 

place  of  holding  said  court,  on  the  ....  day  of , 

19.  .,  at  nine  o'clock,  A.  M.,  and  from  day  to  day,  and  term 
to  term,  until  said  case  is  disposed  of,  then  and  there  to  be 
sworn  as  a  witness,  and  to  bring  with  you,  to  be  used  as  evidence 
for  the  plaintiff,  one  certain  letter  with  the  envelope  in  which 

it  was  contained,  dated ,  19 .  .  . ,  and  written  to  you 

by  Richard  Roe.  Said  letter  to  be  used  as  evidence  by  the 
plaintiff  in  the  case  of  John  Doe  vs'.  Richard  Roe,  suit  on  ac- 
count in  said  Court  pending.  Herein  fail  not.  Witness  my 
hand  and  official  signature,  this ,  19.  .. 


J.  P. 

In  preparing  a  subpoena  duces  tecum,  great  care  must  be 
taken  to  describe  fully  the  document  sought  to  be  produced. 
In  the  aobve  subpoena,  it  would  be  better  to  state  some  part 
of  the  contents  of  the  document  so  as  to  identify  it;  in  this 
CMSC  said  document  might  be  described  as  "being  the  letter  that 
Richard  Roe  wrote  you  in  reference  to  the  account  that  John 
Doe  held  against  Richard  Roe."  Where  books  are  sought,  or 
other  documents,  they  should  be  described  so  as  to  identify 
them. 

It  is  best  to  make  an  original  and  a  copy  of  the  subpoena 
duces  tecum.  Where  the  service  is  by  the  sheriff  or  constable, 
the  original  should  be  served  upon  the  witness  and  a  return  of 
service  made  upon  the  copy  and  return  to  Court.  In  this  way, 
the  Court  would  be  in  possession  of  the  contents'  of  the  original 
served.  The  following  might  be  a  proper  return  of  service: 

GEORGIA,    COUNTY. 

I  have  this  day  served  John  Smith  personally  with  the  origi- 
nal subpoena  duces  tecum,  of  which  the  within  is  a  true  copy. 
This ,19... 


L.  C. 

Or,  if  served  by  the  sheriff,  let  the  sheriff  sign  this  return. 

Where  the  service  is  made  by  a  private  person,  the  evidence 
of  service  upon  the  copy  might  be  in  this  form : 
GEORGIA, COUNTY. 

Personally  came  before  the  undersigned,  attesting  officer, 
John  Doe,  who,  being  duly  sworn,  on  oath  says  that  he  served 
John  Smith  personally  with  the  original  subpoena  duces  tecum, 


58  EVIDENCE 

on    ,   19 .  .,   and  that  the  within  is  a  true 

copy  of   said  original  subpoena. 

JOHN  DOE. 

Sworn  to   and   subscribed  before 
me,    this    19.  ., 


J.  P. 

SEC.  139.  SUBPOENA  TO  WITNESS.  "When  the  attendance 
of  any  person  resident  in  the  county  is  required  as  a  witness  in 
any  court,  the  clerk  of  such  court  (or,  if  there  be  no  clerk,  the 
presiding  judge  or  justice)  shall,  on  application,  issue  a  writ 
of  subpoena,  directed  to  such  person,  requiring  him  to  appear 
and  testify  in  the  case  stated,  and  at  the  time  stated.  Such 
subpoena  shall  be  served  on  the  witness  personally,  by  any  per- 
son capable  of  proving  the  same,  at  least  one  day  before  the  trial 
of  the  cause.  The  witness  so  summoned  shall  attend  the  court 
from  term  to  term  until  the  case  is  tried.  And  if  there  be  an 
appeal  or  new  trial,  notice  of  the  fact,  without  a  new  subpoena, 
shall  be  sufficient  to  require  the  attendance  of  the  witness.  The 
witness  fee  shall  be  seventy-five  cents  per  diem."  Code,  §5849. 

SEC.  140.     FORM  or  SUBPOENA  IN  JUSTICE  COURT. 
GEORGIA, COUNTY. 

To  John  Smith,  Greeting: 

You  are  hereby  commanded,  that  laying  all  other  business 
aside,  you  be  and  appear  at  the  Justice  Court  to  be  held  in  and 

for  the District,  G.  M.,  of  said  county,  at  the  usual 

place  of  holding  said  court,  at  ten  o'clock,  A.  ML,  on 

,  19.  .,  and  thereafter,  from  day  to  day,  and  from 

term  to  term,  until  said  case  is  finally  disposed  of,  to  be  sworn 
as  a  witness  for  the  plaintiff  in  the  case  of  John  Doe  vs.  Richard 
Roe,  in  said  court  pending,  the  s'ame  being  a  suit  on  an  ac- 
count. Herein  fail  not  under  the  penalty  of  the  law. 

Witness  my  hand  and  official  signature,  this , 

19.. 


J.  P. 

SEC.  141.     FORM  OF  SUBPOENA  IN  COURT  OF  INQUIRY. 
GEORGIA, COUNTY. 

To  John  Smith,  Greeting: 

You  are  hereby  commanded  laying  all  business  aside,  to  be 
and  appear  at  the  Court  of  Inquiry  to  be  held  by  the  under- 


EVIDENCE  59 

signed   Justice  of  the  Peace   at   the   Courthouse  in  the  city 

of j  on  the ....  day  of ,  19 .  . , 

at  nine  o'clock  A.  M.,  then  and  there  to  be  sworn  as  a  witness 
for  the  State,  in  the  case  of  the  State  vs.  Richard  Roe,  charged 
with  the  offense  of  a  misdemeanor  and  to  not  depart  thence 
without  leave  of  the  Court.  Herein  fail  not. 

Witness  my  hand  and  official  signature,  this  the ....  day  of 
,  19.. 


J.  P. 

SEC.  142.  SEKVICE  OF  SUBPOENA.  A  subpoena  may  be 
served  by  the  sheriff,  constable  or  any"  private  person.  In  a 
civil  suit,  pending  in  a  justice  court,  it  must  be  served  three 
days  before  the  time  of  trial.  In  a  court  of  inquiry  it  must 
be  served  at  least  one  day  before  the  time  of  trial. 

SEC.  143.  PAYMENT  OF  FEES.  "The  payment  of  the  fees 
of  a  witness  shall  not  be  demanded  as  a  condition  precedent  to 
an  attendance.  But  at  the  close  of  each  term,  or  any  term, 
the  witness  may  make  affidavit  before  any  justice  of  the  peace, 
or  clerk  of  the  court,  of  the  number  of  days  he  has  attended 
on  such  subpoena  for  which  his  fees  are  due,  which  affidavit, 
when  countersigned  by  the  clerk  (or,  if  no  clerk,  the  judge) 
and  attached  to  the  subpoena,  shall  have  the  force  and  effect 
of  an  execution  against  the  property  of  the  party  at  whose  in- 
stance he  was  subpoenaed  (unless  in  behalf  of  the  State)." 
Code,  §5850. 

SEC.  144.  EXCESSIVE  CLAIM.  "A  witness  who  shall  claim 
more  than  is  due  to  him  forfeits  all  his  fees,  and  shall  pay  to 
the  injured  party,  in  addition  thereto,  four  times  the  amount 
so  unjustly  claimed."  Code,  §5851. 

SEC.  145.  FAILURE  TO  ATTEND.  "The  court  may  proceed 
by  attachment  to  compel  the  attendance  of  a  witness  who  fails 
to  obey  the  precept,  and  also  to  punish  him  by  a  fine  not  ex- 
ceeding three  hundred  dollars.  In  addition  thereto  such  a 
witness  shall  be  liable  in  damages  to  the  person  causing  him  to 
bo  subpoenaed,  for  his  failure  to  attend."  Code,  §5852. 

SEC.  146.  WITNESS  IN  IMPRISONMENT.  "The  writ  of 
habeas  corpus  ad  testificandum  may  be  issued  by  the  superior 
court  to  cause  the  production  in  court  of  any  witness  under 
legal  imprisonment."  Code,  §5853. 


60  EVIDENCE 

SEC.  147.  FREEDOM  FROM  ARREST.  "Witnesses  are  pro- 
tected from  arrest  on  any  civil  process  while  going  to  or  return- 
ing from  and  attending  on  any  court,  and  the  officer  who  shall 
hold  him  imprisoned  after  seeing  his'  subpoena,  or  being  satis- 
fied of  the  fact,  shall  be  liable  for  a  false  imprisonment." 
Code,  §5854. 

SEC.  148.  N"o  FEES  IN  CERTAIN  CASES.  "A  witness  shall 
not  receive  any  fees  whatever  for  attendance  on  a  subpoena,  if 
the  cause  at  any  time  is  continued  for  his  absence,  or  if  he  is 
absent  at  the  trial:  Provided,  such  absence  in  neither  case 
arose  from  providential  causes;  nor  shall  any  witness  receive 
fees  from  both  parties  in  the  same  case,  but  shall  be  paid 
equally  by  each,  unless  one  shall  be  cast  in  all  the  cost."  Code, 
§5855. 

SEC.  149.  COURT  DECIDES  COMPETENCY.  "The  competency 
of  a  witness  must  be  decided  by  the  court."  Code,  §5856. 

SEC.  150.  RELIGIOUS  BELIEF.  "Religious  belief  goes  only 
to  the  credit."  Code,  §5857. 

SEC.  151.  WHO  ARE  COMPETENT  TO  TESTIFY.  "No  person 
offered  as  a  witness  shall  be  excluded  by  reason  of  incapacity,, 
for  crime  or  interest,  or  from  being  a  party,  from  giving  evi- 
dence, either  in  person  or  by  deposition,  according  to  the  practice 
of  the  court,  on  the  trial  of  any  issue  joined,  or  of  any  matter 
or  question,  or  on  any  inquiry  arising  in  any  suit,  action,  or 
proceeding,  civil  or  criminal,  in  any  court  or  before  any  judge 
jury,  sheriff,  coroner,  magistrate,  officer,  or  party  having,  by 
law  or  consent  of  parties,  authority  to  hear,  receive,  and  examine 
evidence ;  but  every  person  so  offered  shall  be  competent,  and 
compellable  to  give  evidence  on  behalf  of  either  or  any  of  the 
parties  to  the  said  suit,  action,  or  other  proceeding,  except  as 
follows : 

"1.  Where  any  suit  is  instituted  or  defended  by  a  person 
insane  at  time  of  trial,  or  by  an  indorsee,  assignee,  transferee, 
or  by  the  personal  representative  of  a  deceased  person,  the  op- 
posite party  shall  not  be  admitted  to  testify  in  his  own  favor 
against  the  insane  or  deceased  person,  as  to  transactions  or 
communications  with  such  insane  or  deceased  person. 

"2.  Where  any  suit  is  instituted  or  defended  by  partners, 
persons  jointly  liable  or  interested,  the  opposite  party  shall  not 
be  admitted  to  testify  in  his  own  favor  as  to  transactions  or 
communications  solely  with  an  insane  or  deceased  partner,  or 
person  jointly  liable  or  interested. 


EVIDENCE         .  61 

"3.  Where  any  suit  is  instituted  or  defended  by  a  corpora- 
tion, the  opposite  party  shall  not  be  admitted  to  testify  in  his 
own  behalf  to  transactions  or  communications  solely  with  a 
deceased  or  insane  officer  or  agent  of  the  corporation. 

"4.  Where  a  person  not  a  party,  but  a  person  interested  in 
the  result  of  the  suit,  is  offered  as  a  witness,  he  shall  not  be 
competent  to  testify,  if  as  a  party  to  the  cause  he  would  for  any 
cause  be  incompetent. 

"5.  ISTo  agent  or  attorney  at  law  of  the  surviving  or  sane 
party,  at  the  time  of  the  transaction  testified  about,  shall  bo 
allowed  to  testify  in  favor  of  a  surviving  or  sane  party,  under 
circumstances  where  the  principal,  a  party  to  the  cause,  could 
not  testify;  nor  can  a  surviving  party  or  agent  testify  in  his 
own  favor,  or  in  favor  of  a  surviving  or  sane  party,  as  to  trans- 
actions or  communications  with  a  deceased  or  insane  agent, 
under  circumstances  where  such  witness  would  be  incompetent 
if  deceased  agent  had  been  principal. 

"6.  In  all  cases  where  the  personal  representative  of  the 
deceased  or  insane  party  has  introduced  a  witness  interested  in 
the  event  of  a  suit,  who  has  testified  as  to  transactions  or  com- 
munications on  the  part  of  the  surviving  agent  or  party  with 
a  deceased  or  insane  party  or  agent,  the  surviving  party  or  his 
agent  may  be  examined  in  reference  to  such  facts  testified  to 
by  said  witness."  Code,  §5858. 

SEC.  152.  No  OTHER  EXCEPTIONS.  "There  shall  be  no 
other  exceptions  allowed  under  the  foregoing  paragraphs." 
Code,  §5859. 

SEC.  153.  EVIDENCE  or  ATTORNEY  AS  AGAINST  CLIENTS. 
"No  attorney  shall  be  competent  or  compellable  to  testify  in  any 
court  in  this  State,  for  or  against  his  client,  to  any  matter  or 
thing,  knowledge  of  which  he  may  have  acquired  from  his 
client,  by  virtue  of  his  relations  as  ^attorney,  or  by  reason  of 
the  anticipated  employment  of  him  as  attorney,  but  shall  be 
both  competent  and  compellable  to  testify,  for  or  against  his 
client,  as  to  any  matter  or  thing,  knowledge  of  which  he  may 
have  acquired  in  any  other  manner."  Code,  §5860. 

SEC.  154.  IN  CASES  OF  ADULTERY  AND  BREACH  OF  MAR- 
RIAGE CONTRACT.  "Nothing  contained  in  section  5858  shall 
apply  to  any  action,  suit,  or  proceeding  in  any  court,  instituted 
in  consequence  of  adultery,  or  to  any  action  for  breach  of 
promise  of  marriage."  Code,  §5861. 


62  EVIDENCE 

SEC.  155.  IDIOTS,  ETC.  "Persons  who  have  not  the  use  of 
reason,  as  idiots,  lunatics  during  lunacy,  and  children  who  do 
not  understand  the  nature  of  an  oath,  are  incompetent  wit- 
nesses:" Code,  §5862. 

SEC.  156.  DRUNKARDS.  "Drunkenness,  which  dethrones 
reason  and  memory,  incapacitates  during  its  continuance." 
Code,  §5863. 

SEC.  157.  EVIDENCE  THROUGH  INTERPRETER.  "No  physical 
defect  in  any  of  the  senses  incapacitates  a  witness.  An  in- 
terpreter may  explain  his  evidence."  Code,  §5864. 

SEC.  158.  DECISION  BY  INSPECTION.  "The  court  must,  by 
examination,  decide  upon  the  capacity  of  one  alleged  to  be 
incompetent  from  idiocy,  lunacy  or  insanity,  or  drunkenness, 
or  childhood."  Code,  §5865. 

SEC.  159.  OBJECTION  TO  COMPETENCY,  WHEN  TAKEN.  "The 
objection  to  competency,  if  known,  must  be  taken  before  the 
witness  is  examined  at  all.  It  may  be  proved  by  the  witness 
himself,  or  by  other  testimony;  if  proved  by  other  testimony, 
the  witness  is  incompetent  to  explain  it  away."  Code,  §5866. 

SEC.  160.  COMPETENCY,  How  RESTORED.  '"Any  act  which, 
in  the  judgment  of  the  court,  removes  the  ground  of  incompe- 
tency,  will  restore  the  competency  of  the  witness."  Code,  §5867. 

SEC.  161.  SUBPOENA  ISSUED  BY  JUSTICE  OF  PEACE.  "Either 
one  of  the  justices  of  the  peace  of  the  district  in  which  a  suit 
is  pending  may  issue  a  subpoena,  directed  to  any  witness  whose 
testimony  may  be  desired  by  either  party  in  any  case,  which 
subpoena  shall  be  served  on  the  witness  three  days  before  the 
day  of  the  trial."  Code,  §4731. 

SEC.  162.  WITNESSES  TO  ATTEND  JUSTICE  COURT.  "Any 
witness  failing  to  attend  the  justice's  court,  after  being  duly 
served  with  a  subpoena,  shall  be  subject  to  a  fine  not  exceeding 
ten  dollars,  which  may  be  collected  by  execution,  unless  good 
cause  be  shown  for  such  failure  at  or  before  the  next  court  day 
after  the  default ;  and  such  witness  shall  also  be  liable  to  a  suit 
for  damages  at  the  instance  of  the  party  injured  by  his  default,, 
in  any  court  having  cognizance  of  the  same."  Code,  §4764. 

SEC.  163.  COSTS  OF  WITNESSES  OF  ADVERSE  PARTY.  "No 
party  plaintiff  or  defendant  shall  be  liable  for  the  costs  of  any 
witness  of  the  adverse  party,  unless -such  witness  was  subpoenaed, 
sworn,  and  examined  on  the  trial  of  said  cause  (or  the  plaintiff 
voluntarily  dismisses  his  cause  before  trial)  ;  and  no  party  shall 


INTERROGATORIES  63 

be  liable  for  the  costs  of  more  than  two  witnesses  to  the  same 
point,  unless  the  court  shall  certify  that  the  question  at  issue 
was  of  such  a  character  as  rendered  a  greater  number  of  wit- 
nesses necessary  to  a  single  point."  Code,  §5990. 

SEC.  164.  OATH  OR  AFFIRMATION.  "The  sanction  of  an 
oath,  or  affirmation  equivalent  thereto,  is  necessary  to  the  recep- 
tion of  any  oral  evidence.  The  court  may  frame  such  affirma- 
tion according  to  the  religious  faith  of  the  witness."  Code, 
§5868. 

SEC.  165.  WITNESSES,  How  EXAMINED.  "The  regular  mode 
of  conducting  the  examination  of  a  witness  shall  be  as  follows : 
First,  the  witness  shall  be  examined  by  the  party  introducing 
him,  "and  then  cross-examined  by  the  other  party ;  after  which 
the  original  party  may  further  interrogate  the  witness  to  ex- 
plain the  direct  or  rebut  the  cross-examination ;  and  if  any  new 
matter  be  thus  elicited,  the  opposite  party  may  further  examine 
the  witness  as  to  such  new  matter.  In  all  cases  in  which  more 
than  one  attorney  is  retained  on  either  side,  the  examination 
and  cross-examination  shall  be  conducted  by  one  of  the  counsel 
only ;  and  at  the  opening  of  the  case  both  parties  shall  state  to 
the  court  to  which  attorney  the  examination  and  cross-examina- 
tion of  witness  is  confined."  Code,  §6318. 

SEC.  166.  TREATMENT  OF  WITNESSES.  "It  is'  the  right  of  a 
witness  to  be  examined  only  as  to  relevant  matter;  and  to  be 
protected  from  improper  questions,  and  from  harsh  or  insulting 
demeanor."  Code,  §5870. 

SEC.  167.  CROSS-EXAMINATION  OF  WITNESSES.  "The  right 
of  cross-examination,  thorough  and  sifting,  belongs  to  every 
party  as  to  the  witnesses  called  against  him.  If  several  parties 
to  the  same  case  have  distinct  interests,  each  may  exercise  this 
right."  Code,  §5871. 


CHAPTER  V 

INTERROGATORIES. 
(See  Part  II,  pages  569-577.) 

SECTION  168.     FORM.     "The  following  shall  be  the  form  of 
a  commission  to  take  testimony  by  interrogatories: 


64:  INTEBEOGATOBIES 

Georgia, County. 

By  His  Honor, one  of  the  judges  of 

the court  for  the  county  and  State  aforesaid. 

To . and ,    Esquires — Greeting : 

Whereas,  There  is  a  certain  matter  of  controversy  now  de- 
pending in  the court  for  said  county  between 

and ;  and  whereas 

is  a  material  witness  in  said  suit,  and  can  not  attend  our  said 
court  in  person,  without  manifest  inconvenience: 

Now  know  ye,  that  we,  reposing  special  trust  and  confidence 
in  your  prudence  and  fidelity,  have  appointed  you ;  and  you,  or 
any  two  or  more  of  you,  are  hereby  authorized  and  required  to 

cause  said personally  to  come  before  you,  and, 

after  being  duly  sworn,  to  examine concerning  the 

said  suit,  agreeably  to  the  interrogatories  hereunto  annexed; 
and  the  answers  to  the  same  being  plainly  and  distinctly  writ- 
ten, you  are  to  send  the  same,  closed  up  under  your  hands  and 

seals,  to  our  said  court,  to  be  held  on  the day v  of 

next,  together  with  this  writ. 

Witness  the  Honorable ,  one  of  the  judges  of 

said  court,  this day  of "     Code,  §6289. 

SEC.  169.  WITNESSES'  NAMES.  "The  names  of  the  witnesses 
intended  to  be  examined  by  commission  shall  be  distinctly 
specified  in  the  notice  served  upon  the  adverse  party,  preparatory 
to  issuing  the  commission."  Code,  §6290. 

SEC.  170.  TIME  ALLOWED  FOR  RETUEX.  "The  time  to  be 
allowed  for  the  return  of  commissions  from  any  part  of  the 
United  States  of  North  America,  if  less  than  one  hundred  miles 
distant  from  the  place  of  trial,  shall  be  twenty  days ;  if  a  greater 
distance  and  less  than  five  hundred  miles,  thirty  days ;  if  a 
greater  distance,  forty  days ;  to  any  part  of  the  West  Indies  or 
South  America,  eighty  days ;  or  to  any  part  of  Europe,  one 
hundred  and  twenty  days,  unless,  in  the  discretion  of  the  court, 
a  longer  time  shall  be  allowed."  Code,  §6291. 

SEC.  171.  COMMISSION  NOT  REGULAR,  "In  cases  of  com- 
missions returned  not  executed  or  directed  according  to  rule, 
either  party  in  the  cause  shall,  upon  five  days  notice  to  the 
adverse  party  or  his  attorney,  be  permitted  to  return  the  com- 
mission and  its  contents  (except  the  answers  of  the  witness, 
which  shall  remain  in  the  clerk's  office)  to  the  commissioners, 
to  be  properly  executed  and  directed."  Code,  §6292. 


INTERROGATORIES  65 

SEC.  172.  COMMISSIONS  BY  MAIL.  "When  commissions  are 
returned  by  mail,  to  entitle  the  party  to  open  the  same,  the 
postmaster,  his  deputy,  or  assistant  must  indorse  upon  the  back : 
'I  certify  that  I  received  this  package  from  A.  B.,  one  of  the 
commissioners.'  The  usual  abbreviations  of  initials  of  Christian 
names  of  the  commissioners,  witnesses,  attorneys,  clerks,  magis- 
trates, and  postmasters  shall  be  sufficient."  Code,  §6293. 

SEC.  173.  LEADING  QUESTIONS.  "No  exception  to  a  written 
interrogatory,  on  the  ground  that  it  is  a  leading  question,  shall 
prevail,  unless  it  be  filed  with  the  interrogatories  before  the 
issuing  of  the  commission."  Code,  §6294. 

SEC.  174.  AGREEMENT  TO  TAKE  INTERROGATORIES.  Where 
the  commission  is  waived  and  the  interrogatories  are  taken  by 
agreement,  such  agreement  should  be  endorsed  on  the  original 
interrogatories  at  the  time  of  the  service  of  the  copy.  Frequently, 
however,  in  such  case  the  original  interrogatories  after  the  sign- 
ing of  the  agreement  are  turned  over  to  the  opposite  party 
making  out  his  cross-interrogatories.  Such  agreement  might 
be  in  the  following  form: 

Due  and  legal  service  is  hereby  acknowledged  and  copy  re- 
ceived of  the  within  interrogatories;  commission,  filing,  notice 
of  filing  are  hereby  waived,  and  it  is  agreed  by  and  between  the 

parties  that  these  interrogatories  shall  be  executed  by.  ., 

as  sole  commissioner,  and  returned  to  the  justice  of  the  peace 
either  by  hand  or  by  due  course  of  mail  without  any  formality 
of  transmission,  and  it  is  further  agreed  by  John  Doe  to  file 
his  cross-interrogatories  within  five  days  from  this  date. 

This ,19 

RICHARD  ROE, 
JOHN  DOE. 

SEC.  175.  CROSS-INTERROGATORIES.  If  the  commission  is 
not  waived,  it  is  the  duty  of  the  opposite  party  to  file  his  cross- 
interrogatories,  where  the  suit  is  in  a  Justice  Court,  within  five 
days  from  the  time  of  the  service,  or  if  the  case  is  in  the  Superior 
Court,  within  ten  days  from  the  time  of  service,  and  also  to 
name  two  commissioners,  the  other  party  having  the  right  to 
name  one.  One  of  the  commissioners  named  by  the  opposite 
party  must  act  unless  a  good  and  sufficient  reason  be  shown  for 
his  failure.  In  the  selection  of  commissioners,  care  should  be 
to  name  disinterested  persons  who  would  be  fair  and 


66  INTERROGATORIES 

impartial  and  in  no  way  connected  with  the  case  either  as  a 
witness  or  by  interest;  the  commissioner  should  stand  fair  and 
impartial  between  the  parties  like  a  judge. 

In  the  preparation  of  cross-interrogatories,  it  is  best  to  state 
the  case  first,  and  make  this  statement  after  the  statement  of 
the  case,  to  wit: 

Cross-interrogatories  propounded  by  John  Doe,  plaintiff,  to 
John  Smith,  for  whom  direct  interrogatories  have  been  filed  by 
Richard  Roe. 

SEC.  176.     FORM  OF  INTERROGATORIES. 
Georgia, County. 

T         y,  ^        IN  THE  JUSTICE  COURT  OF  THE 

DISTRICT,  G.  M.,  OF COUNTY, 

TERM,  19 

RICHARD  ROE  0 

J  SUIT  ON  ACCOUNT. 

Original  interrogatories  to  be  propounded  to  John  Smith,  a 
material  witness  for  the  defendant,  who  resides  out  of  the 

County  of and  in  the  County  of , 

in  said  State. 

DIRECT  INTERROGATORIES. 

1st  Interrogatory. 

Where  do  you  reside  and  do  you  know  the  parties  to  the 
above  named  and  stated  case  ? 

2nd  Interrogatory. 

What  conversation  if  any  did  you  ever  have  with  John  Doe 
in  reference  to  an  account  that  he  held  against  Richard  Roe? 
If  you  answer  that  you  had  a  conversation,  state  when  and 
where  and  what,  if  anything,  he  said  to  you  in  reference  to  the 
account. 

3rd  Interrogatory. 

What,  if  anything,  did  he  ever  state  to  you  in  reference  to 
holding  a  note  against  you  transferred  to  him  by  Richard  Roe, 
and  state  what  consideration,  if  any  he  stated,  he  paid  for  this 
note  and  how  he  came  into  possession  of  it? 

4th  Interrogatory. 

What,  if  anything,  did  he  say  in  reference  as  to  whether  or 
not  the  account  he  held  against  Richard  Roe  had  been  settled, 
and  if  he  stated  anything  upon  this  subject?  State  what  it 
was. 


INTERROGATORIES  67 

5th  Interrogatory. 

State  what,  if  anything,  he  said  as  to  whether  or  not  Richard 
Roe  owed  you  anything  upon  the  account.  State  fully  and 
explicitly  what  he  said  upon  this  subject. 


Plaintiff's  Attorney. 

SEC.  177.  SIGNATURE,  FILING,  NOTICE,  ETC.  These  inter- 
rogatories should  be  filed  with  the  justice  of  the  peace  and  notice 
should  be  given  at  the  time  of  filing  to  John  Doe,  of  the  filing, 
and  after  they  have  remained  with  the  justice  of  the  peace  for 
five  days  after  the  serving  of  such  notice  of  the  filing  with  a 
copy  of  the  interrogatories  served  on  John  Doe,  then  the  de- 
fendant Richard  Roe  can  apply  to  the  justice  of  the  peace  for 
a  commission  to  three  commissioners  to  execute  the  interroga- 
tories. The  plaintiff,  John  Doe,  in  the  meantime,  would  have 
a  right  to  file  cross-interrogatories  and  also  to  name  two  of  the 
commissioners.  The  form  of  the  notice  to  be  served  upon  John 
Doe,  might  be  in  this  form: 
Georgia,  County. 

^1        In  the  Justice  Court  of  the 

JOHN  DOE  ^. ,  .  ^ 

Dist.,    ,   of    County, 

VS'    -p  Term,     19... 

RICHARD  ROE  0  -*,. 

J  feuiT  ON  NOTE. 

To  John  Doe,  Plaintiff: 

.     In  the  above  named  and  stated  case,  you  are  hereby  notified 

that  I  have  this  day  filed  with ,  Justice  of  the 

Peace  in  and  for  the District,  G.  M.,  of 

County,   interrogatories  to  be  propounded  to  John  Smith,   a 

material  witness  in  my  behalf,  who  resides  in 

County,  a  copy  of  which  interrogatories  is  hereto  attached,  and 
that  at  the  expiration  of  five  days  I  will  apply  to  said  Justice 
of  the  Peace  for  a  commission  and  the  appointment  of  com- 
missioners to  execute  said  interrogatories  and  if  you  desire  to 
name  two  of  the  commissioners,  you  will  give  their  names  to 
the  Justice  of  the  Peace  and  also  file  with  him  whatever  cross- 
interrogatories  you  desire.  This ,  19 

RICHARD  ROE,  Defendant. 

The  interrogatories  can  be  signed  by  defendant's  attorney  if 
he  has  an  attorney,  and  the  cross-interrogatories  can  be  prepared 
and  signed  by  the  attorney  for  John  Doe  if  he  has  an  attorney. 


68  INTERROGATORIES 

The  entry  of  service  of  the  interrogatories  upon  John  Doe 
should  appear  and  might  be  in  this  form,  and  placed  upon  the 
back  of  the  original  interrogatories: 

Georgia, County. 

Before  me,    ,   J.    P.,   personally  came 

Richard  Roe,  who,  being  duly  sworn,  on  oath  says  that  on  the 

day  of ,  19 .  . .  . ,  he  served 

John  Doe  personally  with  a  copy  of  the  original  interrogatories 

hereto  attached  for  John  Smith,  a  resident  of County, 

and  also  with  the  original  notice  of  time  of  filing,  of  which  a 
true  copy  is  hereto  attached. 

RICHARD  ROE. 

Sworn  to  and  subscribed  before  me,  this 
the day   of ,   19 


J.  P. 

This  affidavit  with  the  copy  of  the  notice  should  be  attached 
to  the  original  interrogatories  and  filed  with  them  in  the  Court. 

SEC.  178.  INTERROGATORIES  OF  WITNESSES  WITHOUT  COM- 
MISSION. Interrogatories  of  a  witness  may  be  taken  by  agree- 
ment without  a  commission.  This  agreement  may  be  varied  in 
almost  any  part  as  to  the  conditions  under  which  they  are  taken 
and  the  commissioners.  One  commissioner  may  take  them  by 
agreement  or  more  than  one.  It  is  usual  in  such  case  to  make 
an  agreement  that  the  interrogatories  may  be  executed  by  some 
party  as  sole  commissioner.  In  such  case,  the  following  form 
may  be  used  : 

Georgia,    County. 

JOHN  DOE       1       COMPLAINT  FOR  DAMAGES 

vs.  V      IN   SUPERIOR  COURT, 

RICHARD  ROE     )       TERM,  19.  .. 

In  the  above  named  and  stated  case,  it  is  hereby  agreed  by 
the  parties  thereto,  ihat  the  interrogatories  of  John  Smith,  a 

witness  for  the  plaintiff,  and  a  resident  of County, 

be  taken  and  he  be  examined  by  as  sole  com- 
missioner, and  that  he  return  the  same  to  the  clerk  of  the  Supe- 
rior Court  of County  by  due  course  of  mail 

without  any  other  formality. 


This  agreement  may  be  varied  in  any  way  that  the  parties 
may  agree  upon.     Two  commissioners  may  be  named  or  three 


INTERROGATORIES  69 

if  it  is  so  desired.  Such  agreement  takes  the  matter  out  of  the 
statute.  It  is  necessary  usually  that  the  agreement  shall  be 
followed. 

The  following  form  of  caption  will,  if  followed  in  substance, 
be  sufficient: 

Georgia, County. 

JOHN  DOE       j       COMPLAINT  FOR  DAMAGES 

vs.  V      IN SUPERIOR  COURT 

RICHARD  ROE     ) TERM,    19 .... 

In  the  above  named  and  stated  case,  due  and  legal  service  is 
hereby  acknowledged  of  the  interrogatories  of  John  Smith,  a 

resident  of County  in  the  above  named  and 

stated  case,  commission,  filing  is  hereby  waived,  and  copy  of 
interrogatories  has  been  received.  We  consent  to  cross  said 
iuterrogatories  and  return  the  same  to  plaintiff's  counsel  within 
five  days  from  this  date.  This ,  19.  ... 


Attorney  for  Defendant. 

The  form  of  return  provided  by  Code,  §5903,  is  as  follows: 
"State  of  Georgia, County. 

"By  virtue  of  an  agreement  between  the  parties  or  counsel  in 

the  case  of vs ,  pending  in  the 

court  of (county  or  district,  as 

the  case  may  be),  the  undersigned,  acting  as  commissioners, 
have  caused  A.  B.,  a  witness  in  said  case,  to  come  before  us, 
who,  being  duly  sworn  true  answers  to  make  to  the  annexed 
interrogatories,  deposes  and  answers  as  follows : 

"To  first  interrogatory,  he  answers,  etc. 

"To  second  interrogatory,  he  answers,  etc. 

"To  first  cross-interrogatory,  he  answers,  etc. 

"To  second  cross-interrogatory,  he  answers,  etc. 

"Answered,  subscribed,  and  sworn  to  before  us,  this 

day  of '. ,  19 

"E.   F,,  COMMISSIONER,    (Seal). 
"G.  H.,  COMMISSIONER,   (Seal).    „ 

"A.  B.,  Witness." 

A  substantial  compliance  with  the  same  shall  be  sufficient  to 
let  the  answers  go  to  the  jury,  if  legal  on  other  grounds,  and  to 
give  legal  sanction  to  thp  oath  administered  as  aforesaid. 


70  DEPOSITIONS  WITHOUT  COMMISSION 

CHAPTER  VI 

DEPOSITIONS  WITHOUT  COMMISSION. 
(See  Part  II,  pages  569-577.) 

SECTION  179.  DEPOSITIONS  WITHOUT  COMMISSION,  How 
TAKEN.  "Whenever  it  is  legal  to  examine  witnesses  on  Avritten 
interrogatories  by  commission,  the  testimony  of  such  witnesses 
may  "also  be  taken,  without  a  commission,  before  a  notary  public 
or  any  officer  authorized  to  issue  attachments,  if  taken  within 
this  State,  or,  if  taken  without  this  State,  before  any  officer  or 
the  State  or  county  where  the  deposition  is  taken,  authorized 
by  the  laws  of  this  State  to  attest  deeds  or  take  acknowledg- 
ments. The  officer  shall  not  be  of  counsel,  to  either  of  the 
parties,  nor  interested  in  the  event  of  the  case."  Code,  §5905. 

SEC.  180.  NOTICE,  ITS  CONTENTS  AND  How  GIVEN.  "A 
reasonable  notice,  not  less  than  ten  days,  must  first  be  given  in 
writing  by  the  party,  or  his  attorney,  proposing  to  take  such 
deposition,  to  the  opposite  party  or  his  attorney  of  record, 
which  notice  shall  state  the  name  of  the  witness,  and  the  time 
and  place  of  the  taking  of  his  deposition;  and  whenever  by 
reason  of  the  absence  from  the  county  and  want  of  an  attorney 
of  record,  or  by  other  reason,  the  giving  of  the  notice  herein 
required  shall  be  impracticable,  it  shall  be  lawful  to  take  such 
depositions  as  there  shall  be  urgent  necessity  for  taking,  upon 
such  notice  as  the  judge  of  the  court  for  which  the  deposition 
is  to  be  taken  shall  think  reasonable  and  direct."  Code,  §5906. 

SEC.  181.  WITNESS  COMPELLED  TO  APPEAR;  How  EXAM- 
INED. "The  witness  may  be  examined  and  cross-examined  as 
in  open  court.  Any  person  may  be  compelled  to  appear  and 
depose,  in  the  same  manner  as  witnesses  may  be  compelled  to 
appear  in  court."  Code,  §5907. 

SEC.  182.  TESTIMONY,  How  TAKEN.  "Every  person  depos- 
ing as  provided  in  the  preceding  section  shall  be  sworn  to  testify 
the  whole  truth,  and  carefully  examined.  His  testimony  shall 
be  reduced  to  writing  by  the  officer  taking  the  deposition,  or  by 
himself  in  the  officer's  presence;  but  the  officer  may  employ  a 
disinterested  stenographer  to  take  down  and  write  out  the  testi- 
mony. The  testimony,  after  it  has  been  reduced  to  writing, 
shall  be  subscribed  by  the  deponent.."  Code,  §5908. 


DEPOSITIONS  WITHOUT  COMMISSION  71 

SEC.  183.  DEPOSITIONS,  How  DELIVERED.  "Every  depo- 
sition taken  under  the  preceding  sections  of  this  article  shall 
be  retained  by  the  officer  taking  it  until  he  delivers  it  with  his 
own  hands  into  the  court  for  which  it  is  taken;  or  it  shall,  with 
a  certificate  of  the  reasons  for  taking  it,  and  of  the  want  of 
interest  of  the  officer,  and  of  the  stenographer  if  one  be  em- 
ployed, and  with  the  notice,  if  any  be  given  to  the  adverse 
party,  be  sealed  up  and  directed  to  such  court,  and  remain 
under  his  seal  until  opened  in'  court.  But  if  the  reasons  for 
taking  the  deposition  cease  to  exist  before  the  trial,  such  depo- 
sition shall  not  be  used  in  the  case."  Code,  §5909. 

SEC.  184.     FORM  OF  NOTICE. 
JOHN  DOE       ^       COMPLAINT  FOR  DAMAGES 

vs.  V      IN SUPERIOR  COURT 

EICHARD  KOE     j TERM,    19. ... 

To  Richard  Roe  and  his  Attorney,  George  R.  Brown: 

You  are  hereby  notified  that  on  the day  of .  . , 

19.  .  .  .,  at  ten  o'clock,  A.  M.,  in  Room of  the 

Building,  in  the  City  of ,  before , 

a  Justice  of  the  Peace  in  and  for County, 

I  will  proceed  to  take  the  evidence  of  John  Smith,  a  material 

witness  for  the  plaintiff,  who  resides  in County, 

and  this  notice  is  given  you  that  you  may  be  present  and  cross- 
examine  said  witness,  if  you  so  wish.     This 

day  of   ,  19 


Attorney  for  Richard  Roe. 

The  better  plan  is  to  get  an  acknowledgment  of  service  on 
this  notice,  but  if  this  can  not  be  done,  it  should  be"  made  in 
duplicate  and  one  served  on  the  party  notified ;  the  other  should 
be  returned  to  the  officer  before'  whom  the  deposition  is  taken 
with  an  affidavit  upon  it  of  the  service. 

SEC.  185.  DEPOSITIONS  TAKEN  WITHOUT  ORDER  OR  COM- 
MISSION. "In  all  counties  of  this  State,  either  party  litigant 
in  any  court  of  record  in  any  such  county  may,  without  any 
order  or  commission,  take  the  deposition  of  any  witness  or  wit- 
nesses in  said  case,  whether  resident  in  the  county  or  not,  upon 
giving  the  opposite  party  five  days  notice  of  the  time  and  place, 
with  the  names  of  the  witnesses :  Provided,  that  the  commis- 
sioner before  whom  the  evidence  under  this  section  is  to  be 
taken  shall  have  power,  on  notice  being  given  to  the  opposite 
party  or  his  attorney,  or  on  subpoena  duces  tecum  being  served 


72  DEPOSITIONS  WITHOUT  COMMISSION 

five  days  previously  to  the  hearing,  to  require  any  witness  or 
party  to  produce,  at  the  hearing,  books,  writings,  and  other  docu- 
ments in  his  possession,  power,  custody,  or  control.  Any  witness 
or  party  refusing  to  produce,  appear,  or  answer,  without  legal 
excuse,  shall  be  guilty  of  contempt;  and  upon  certification  of 
said  act  by  the  commissioner  to  the  judge  in  whose  court  the 
case  is  pending,  the  judge  shall  punish  the  same  as  though  com- 
mitted before  him."  Code,  §5910. 

SEC.    186.      NOTICE   TO    TAKE   DEPOSITIONS   UNDER   CODE, 
§5910. 
JOHN  DOE       ^       ACTION  FOB  DAMAGES, 

vs.  V      IN .  SUPERIOR  COURT, 

RICHARD  ROE    j       TERM,  19 .... 

To  John  Doe,  or  his  Attorney, : 

In  the  above  named  and  stated  cause,  you  are  hereby  notified 

that  on  the   day  of   ,  19 .  .  .  . , 

at  ten  o'clock,  A.  M .,  in  Room ,  in  the 

Building,  in  the  City  of ,  before , 

a  Commissioner  appointed  by  the  Judge  of  the  Superior  Court 

of  the Circuit,  and  whose  appointment  as  such 

Commissioner  has  been  spread  upon  the  minutes  of  said  Court, 
I  will  take  the  evidence  of  John  Smith,  a  material  witness  for 
the  defendant  in  the  above  named  and  stated  case,  and  you  are 
hereby  notified  to  be  present  at  said  time  and  place,  where  you 
will  have  the  right  to  cross-examine  said  witness,  if  you  should 
so  wish.  This ,  19 .... 

Attorney  for  Richard  Roe. 

Under  this  section,  five  days'  notice  of  the  time  and  place  of 
hearing  must  be  given  the  opposite  party  and  the  original  notice 
with  the  evidence  of  service  upon  it  must  be  returned  to  the 
Commissioner  and  by  him  sent  to  the  Court  where  the  evidence 
goes  after  it  is  taken. 

SEC.  187.  DEPOSITIONS,  BY  WHOM  TAKEN.  "Such  deposi- 
tions shall  be  taken  before  any  commissioner  appointed  by  the 
judge  of  the  superior  court  of  said  county  for  the  purpose  of 
taking  such  depositions  and  the  appointment  entered  on  the 
minutes ;  or,  in  case  of  failure  to  appoint  or  there  is  a  vacancy 
in  the  office  of  commissioner,  the  clerk  of  the  superior  court  is 
hereby  authorized  as  an  ex-officio  commissioner  to  take  such  dep- 


DEPOSITIONS  WITHOUT  COMMISSION  73 

ositions.  All  witnesses  shall  be  examined  in  the  county  of 
their  residence,  and  before  the  commissioner  or  ex-officio  com- 
missioner of  such  county."  Code,  §5911. 

SEC.   188.     FORM  OF  CAPTION,  CERTIFICATE,  ETC.     "The 
caption  and  certificate  of  the  return  of  such  cases  may  be  sub- 
stantially as  follows: 
<A.B.    J 

vs.      f      In  the Court  of County,  Georgia. 

C.D.    J 

Depositions  of (and ),  witness  (or  witnesses)  for 

the  plaintiff    (or  defendant)    in  the  above  case,   taken  upon 

notice,  beginning  on  the.  .  .  .day  of ,  18.  .,  at  .  .  .  .,  in 

the  presence  of  the  plaintiff  and  defendant  (either  or  both),  in 
person  or  by  attorney  (as  the  case  may  be).  The  said  witness 
(or  witnesses),  being  first  duly  sworn,  deposed  as  follows: 
(Here  stating  each  question,  both  direct  and  cross,  with  the  an- 
swer as  delivered  by  the  witness  immediately  after  it,  and  con- 
cluding as  follows:)  The  foregoing  depositions  were  taken 
before  me,  as  stated  in  the  caption,  and  the  answers  reduced  to 
writing  by  me,  or  by  the  witness  in  my  presence ;  and  I  certify 
that  I  am  not  interested  in  the  cause,  nor  of  kin  or  counsel  to 
either  of  the  parties.'  And  signed  by  the  commissioner." 
Code,  §  5912. 

SEC.  189.  MOTIONS  AND  OBJECTIONS,  How  MADE  AND  RE- 
TURNED. "All  motions  or  applications  to  postpone  or  adjourn 
the  proceedings,  and  all  objections  to  the  witnesses  or  proceed- 
ings, shall  be  made  to  the  commissioner,  and  if  in  writing,  filed 
with  the  return,  and  if  not  in  writing,  noted  in  and  become  part 
of  the  return,  with  the  ruling  of  the  commissioner  thereon,  and 
the  answer  of  the  witnesses,  whether  the  objection  be  sustained 
or  not."  Code,  §5913. 

SEC.  190.  ORDER  AND  SCOPE  OF  EXAMINATION.  "The  or- 
der and  scope  of  the  examination  shall  be  had  in  conformity  to 
the  rules  of  the  superior  court  governing  the  examination  of 
witnesses1  in  trials  at  law."  Code,  §5914. 

SEC.  191.  DEPOSITIONS,  How  RETURNED.  "When  the  re- 
turn shall  have  been  made  up  and  signed  as  provided  in  the 
preceding  sections,  the  same  shall  be,  together  with  evidence  of 
the  service  of  the  notice,  sealed  up  and  directed  to  the  clerk  of 
the  court  where  the  case  is  pending,  and  may  be  delivered 
either  by  the  commissioner  to  such  clerk  in  person,  or  sent  by 


74  JUSTICES  OF  THE  PEACE,  ETC. 

the  hand  of  any  other  person;  and  the  clerk  is  hereby  author- 
ized, whether  the  court  be  in  session  or  not,  to  administer  the 
usual  oath,  and  enter  the  same  on  the  package,  with  leave  to 
open,  as  practiced  in  this  State  (as  to  interrogatories),  and  the 
package  may  be  thereupon  opened  and  published  without  fur- 
ther delay."  Code,  §5915. 

SEC.  192.  POWER  AND  FEES  OF  COMMISSIONER.  "The 
commissioner  shall  have  the  same  power  and  authority  to  sum- 
mon witnesses,  and  compel  their  attendance  to  testify  before 
him,  as  are  now  conferred  upon  justices  of  the  peace  in  this 
State  to  compel  witnesses  to  appear  and  testify  in  justices' 
courts ;  and  the  said  commissioner  shall  receive,  from  the  party 
seeking  the  testimony  of  the  witnesses  examined  before  him, 
the  following  fees,  to  wit:  For  the  examination  of  each  wit- 
ness, two  dollars;  for  certifying  and  returning  the  testimony 
taken  before  him  for  the  plaintiff  or  defendant,  in  each  case, 
fifty  cents;  for  issuing  each  subposna,  twenty  cents."  Code, 
§5916. 

SEC.  193.  COMMISSIONER'S  ORDERS,  How  EXECUTED. 
"The  attachments,  or  orders,  or  other  process  issued  by  said 
commissioner,  for  the  purpose  of  compelling  witnesses  to  ap- 
pear and  testify,  shall  be  directed  to,  and  may  be  executed  by, 
the  sheriff,  his  deputy,  or  any  constable  of  the  county."  Code, 
§5917. 


CHAPTER  VII 

JUSTICES  OF  THE  PEACE  AXD  XOTARIES  PUBLIC 
EX  OFFICIO  JUSTICES  OF  THE  PEACE. 

SEC.  194.  ONE  JUSTICE  OF  THE  PEACE  IN  EACH  DISTRICT. 
"There  shall  be  one  justice  of  the  peace  in  each  militia  district 
of  the  several  counties  of  this  State,  elected  by  the  people  of 
each  district  in  the  manner  hereinafter  prescribed,  who  holds 
his  office  for  four  years,  unles's  sooner  removed."  Code,  §4648. 

SEC.  195.  -  XOTARIES  PUBLIC,  THEIR  APPOINTMENT  AND 
TERM.  "Commissioned  notaries  public,  not  to  exceed  one  for 
each  militia  district,  may  be  appointed  by  the  judges  of  the 
superior  courts  in  their  respective  circuits,  upon  recommenda- 
tion of  the  grand  juries  of  the  several  counties.  They  shall  be 


JUSTICES  OF  THE  PEACE,  ETC.  75 

commissioned  by  the  Governor  for  the  term  of  four  years,  and 
shall  be  ex-officio  justices  of  the  peace,  and  shall  be  removable 
on  conviction  for  malpractice  in  office."  Code,  §4649. 

SEC.  195.  COMMISSIONS,  WHEN  TO  BE  ISSUED.  "The  Gov- 
ernor shall  not  issue  a  commission  to  any  notary  public  and 
ex-officio  justice  of  the  peace,  unless  it  shall  appear  from  the 
order  of  appointment  that  such  appointment  was  made  at  the 
term  of  the  court  next  preceding  the  vacancy,  or  at  some  suc- 
ceeding term  after  such  vacancy  has  occurred."  Code,  §4650. 

SEC.  197.  JUSTICES  OF  THE  PEACE  AND  CONSTABLES,  WHEN 
RULED.  "Justices  of  the  peace  and  constables  shall  be  so  far 
considered  officers  of  the  superior  court  as  to  be  subject  to  be 
ruled  under  similar  regulations  as  are  provided  in  relation  to 
any  other  officer  of  said  court,  and  shall  be  subject  to  all  the 
pains  and  penalties  as  are  provided,  in  case  of  a  rule  absolute 
against  sheriffs  and  other  officers  of  said  court,  when  they,  or 
either  of  them,  shall  refuse  or  neglect  to  collect  or  pay  over 
any  money  which  they  may  have  received  or  collected  in  their 
official  capacity."  Code,  §4657. 

SEC.  198.  VACANCIES,  How  FILLED.  "Vacancies  are  filled 
in  the  following  manner:  If  there  is  a  justice  of  the  peace  in 
the  district  where  the  vacancy  occurs,  he  shall  appoint  some 
Saturday  in  a  month  and  advertise  the  same  at  three  of  the 
most  public  places  therein,  at  least  fifteen  days  before  the  day 
appointed."  Code,  §4658. 

SEC.  199.  ELECTION,  How  HELD.  "On  said  day  said  jus- 
tice with  two  freeholders  must  hold  said  election  in  the  same 
manner  that  a  regular  election  for  justice  of  the  peace  is  held, 
and  duly  certify  the  same  to  the  Governor,  who  must  commis- 
sion the  person  elected  for  the  unexpired  term."  Code,  §4659. 

SEC.  200.  IF  No  JUSTICE.  "If  there  is  no  justice  of  the 
peace  in  the  district  where  the  vacancy  occurs,  the  ordinary  of 
the  county  must  order  an  election  in  the  same  manner,  which 
may  be  held  by  three  freeholders  of  the  district,  who  must  hold 
and  certify  said  election  in  the  same  manner.  Code,  §4660. 

SEC.  201.  QUALIFICATIONS,  ETC.  "All  persons  are  eligible 
to  the  office  of  justice  of  the  peace  who  are  entitled,  in  the 
county  in  which  the  district  is  situated,  to  vote  for  the  mem- 
bers of  the  General  Assembly,  who  have  been  three  months  in 
the  district  next  preceding  the  election,  and  who  do  not  labor 
under  any  disqualification."  Code,  §4661. 


76  JUSTICES  OP  THE  PEACE,  ETC. 

SEC.  202.  FAILURE  TO  ELECT.  "When  any  district  is  with- 
out a  justice  of  the  peace,  and  an  election  has  been  legally  or- 
dered to  supply  the  vacancy,  and  none  is  bona  fide  held  at  the 
time  and  place  appointed,  it  is  the  duty  of  the  ordinary  to  ap- 
point one  person  resident  in  the  district,  and  to  certify  it  to  the 
Governor,  who  must  commission  the  appointee  for  the  required 
term."  Code,  §4662. 

SEC.  .  203.  JUSTICE,  WHEN  SUED.  "One  justice  of  the 
peace  may  sue  or  be  sued  before  the  other  in  his  own  district." 
Code,  §4668. 

SEC.  204.  WHERE  JUSTICE  Is  DISQUALIFIED.  "When  a 
justice  of  the  peace  is  disqualified  from  presiding,  and  there  is 
no  other  justice  of  the  peace  in  his  district  who  is  qualified,  any 
justice  of  the  peace  of  the  county  is  qualified  to  issue  all  process 
and  to  preside  in  his  district  and  if  a  justice  of  the  peace  is 
sued  under  such  circumstances,  the  suit  may  be  located  in  any 
adjoining  district.  Any  justice  or  notary  ex-oificio  justice  of 
the  peace  may  preside  in  any  district  of  their  county  in  all 
cases  when  the  justice  or  notary  of  such  district  is  disqualified." 
Code,  §4669. 

"Where  the  justice  of  a  district  in  which  the  defendant  re- 
sided was  disqualified,  and  suit  was  brought  and  the  case  tried 
upon  its  merits,  without  objection,  in  another  district,  the  pre- 
siding justice  of  which  had  jurisdiction  of  the  subject-matter, 
the  defendant  thereby  waived  objection  to  the  jurisdiction  of 
his  person,  and  the  judgment  for  the  plaintiff  wras  good  as 
against  him."  65/254. 

"When  it  appears  that  one  of  the  two  magistrates  of  a  militia 
district  rendered  a  judgment  in  a  case  pending  in  the  other's 
court,  and  there  is  nothing  to  show  whether  the  latter  was  or 
was  not  disqualified  to  try  such  case,  it  will  not,  even  if  it  be 
the  law  that  one  of  such  magistrates  can  properly  preside  in 
the  other's  court  only  when  he  is  disqualified,  be  presumed  that 
the.  magistrate  who  rendered  such  judgment  usurped  authority 
which  he  could  not  lawfully  exercise. 

"This  case  turns  upon  the  ruling  announced  in  the  head- 
note.  Section  4072  of  the  Civil  Code  provides  that,  'When  a 
justice  of  the  peace  is  disqualified  from  presiding,  and  there  is 
no  other  justice  of  the  peace  in  his  district  who  is  qualified, 
any  justice  of  the  peace  of  the  county  is  qualified  to  issue  all 
process  and  to  preside  in  his  district.'  By  the  clearest  implica- 


JUSTICES  OF  THE  PEACE,  ETC.  77 

tion,  one  magistrate  in  a  given  militia  district  may  preside  in 
the  court  of  the  other  magistrate  thereof,  if  the  latter  is  for  any 
reason  disqualified."  113/633  (38  S.  E.  946). 

"A  justice  of  the  peace  is  by  law  prohibited  from  sitting  in 
any  cause  when  he  is  related  to  either  party  within  the  fourth 
degree  of  consanguinity  or  affinity,  and  while  such  relationship 
may  not  render  void  the  issuance  of  an  execution  to  foreclose  a 
landlord's  lien  in  favor  of  the  party  to  whom  the  justice  is  re- 
lated yet,  where  such  disqualifications  exist,  any  other  justice 
of  the  peace  of  the  county  may  also  issue  the  execution  and 
preside  on  the  trial  of  an  issue  formed  by  a  counter-affidavit 
interposed  on  the  levy  of  such  execution."  110/636  (36  S. 
E.  54). 

"A  justice  of  the  peace  has  no  authority  to  preside  in  a  case 
outside  his  district,  unless  the  justice  or  notary  of  the  district 
in  which  the  case  is  pending  is  disqualified,  or  parties  litigant 
consent.  Civil  Code,  $4072  (4669). 

"A  judgment  rendered  by  a  justice  unauthorized  to  preside 
as  a  justice  in  the  district  where  it  was  rendered  is  a  nullity 
and  of  no  effect.  3  App.  160  (59  S.  E.  322). 

"When  both  magistrates  of  a  militia  district  are  disqualified 
from  presiding  in  a  given  case,  any  justice  of  the  peace  of  the 
comity  may  lawfully  preside  in  the  justice's  court  of  that  dis- 
trict for  the  purpose  of  trying  that  case. 

"When  one  party  to  a  case  pending  in  a  justice's  court  makes' 
the  point  that  the  magistrate  presiding  over  that  court  is  dis- 
qualified, and  the  other  party  makes  the  same  point  as  to  the 
other  magistrate  of  the  district,  and  the  case  is  thereupon  tried 
by  a  justice  from  another  district  of  the  county  'without  any 
objection  being  made  by  either  side,'  the  losing  party  is  there- 
after estopped  from  denying  the  authority  of  the  last-men- 
tioned justice  to  preside  in  the  case,  especially  after  such  party 
has  recognized  the  validity  of  the  judgment  by  entering  an 
appeal  therefrom  to  a  jury  in  the  justice's  court. 

"If  the  magistrate  in  whose  court  the  case  was  pending  was 
not  in  fact  disqualified,  his  declining,  under  such  circum- 
stances as  those  above  indicated,  to  preside  at  the  first  trial  did 
not  disqualifv  him  from  presiding  at  the  trial  on  the  appeal." 
108/659  (84  S.  E.  192). 

"When  a  notary  public  who  is  ex  officio  justice  of  the  peace 
is  disqualified,  or  refuses  to  serve,  in  a  given  case,  or  his  term 
of  office  has  expired,  after  an  appeal  from  his  judgment  has 


78  JUSTICES  OF  THE  PEACE,  ETC. 

been  entered,  the  other  justice  of  that  district  may  preside  in 
a  trial  of  the  appeal  before  a  jury,  especially  when  neither  of 
the  parties  before  verdict  makes  any  objection  to  his  so  presid- 
ing." 90/206  (15  S.  E.  742). 

SEC.  205.  WHERE  THERE  Is  No  JUSTICE.  "Where  there 
is  no  justice  of  the  peace  in  any  district  where  a  defendant  re- 
sides, or  there  is  one  and  he  refuses  to  serve  generally  or  in  any 
particular  case,  the  suit  may  be  located  in  any  adjoining  dis- 
trict" Code,  §4670. 

SEC.  206.  JUSTICE  OF  THE  PEACE  MAY  ACT  AS  CORONER, 
"When  there  is  no  coroner  in  a  county,  or  he  is  absent  from 
the  county  when  needed,  or  will  not  or  can  not  take  an  inquest, 
any  justice  of  the  peace  of  the  county  may  act  as  coroner." 
Code,  $4671. 

"In  order  for  a  justice  of  the  peace  to  be  entitled  to  compen- 
sation for  holding  an  inquest  upon  a  dead  body,  he  must  make 
it  affirmatively  appear  that  he  rendered  the  service  under  cir- 
cumstances which  gave  him  the  legal  right  to  act  as  coroner, 
namely,  that  there  was  no  coroner  in  office  or  that  he  was  absent 
from  the  county  when  needed  or  would  not  or  could  not  take  the 
inquest."  94/679  (21  S.  E.  828). 

SEC.  207.  SUIT  MAY  BE  TRANSFERRED.  "If  suits  are  al- 
ready commenced  and  are  suspended  for  want  of  a  justice  of 
the  peace  to  preside  or  competent  jury  to  try  such  cases,  such 
suits  shall  be  removed  to  the  adjoining  districts,  unless  the  evil 
is  removed  within  sixty  days,  or  upon  the  fact  being  made  to 
appear  to  the  court  by  affidavit  of  either  party  to  such  suits." 
Code,  $4672. 

SEC.  208.  SUITS  MAY  BE  TRANSFERRED  TO  COUNTY-SITE. 
"If,  from  any  cause,  all  such  suits  can  not  be  located  or  prose- 
cuted in  some  adjoining  district,  they  may  be  commenced  or  re- 
moved to  the  justice's  district  which  embraces  the  county-site." 
Code,  $4673. 

SEC.  209.  POWER  OF  JUSTICES,  ETC.  "The  justices  of  the 
peace  and  constables  of  any  district  where  a  suit  is  thus  begun 
or  removed  have  the  same  power  as  those  officers  in  the  proper 
districts."  Code,  $4674. 


CONSTABLES  79 

CHAPTER  VIII 

CONSTABLES. 

SEC.  210.  CONSTABLES,  NUMBER,  ELECTION,  ETC.  "There 
shall  be  two  constables  in  each  militia  district  of  the  several 
counties  of  this  State,  elected  by  the  people  of  each  district  as 
in  this  Code  prescribed,  who  hold  their  offices  for  two  years 
unless  sooner  removed."  Code,  §4680. 

SEC.  211.  How  REMOVED.  "They  are  subject  to  be  re- 
moved from  office  on  the  same  grounds  and  on  the  same  pro- 
ceedings as  clerks  of  the  superior  court  are,  and  on  conviction 
for  malpractice  in  office  as  justices  of  the  peace  are."  Code, 
§4681. 

SEC.  212.  VACANCIES.  "Vacancies  are  filled  by  appoint- 
ment of  the  justices  of  the  peace  of  the  district,  in  the  follow- 
ing contingencies: 

"1.  When,  from  any  cause,  there  is  a  failure  to  elect,  quali- 
fy, and  give  bond  at  the, regular  time. 

"2.  When  there  is  a  death,  resignation,  or  removal  of  con- 
stable. 

"3.  When  from  sickness,  or  other  providential  cause,  the 
district  is  without  a  constable,  there  may  be  an  appointment,  if 
an  emergency  arises,  to  continue  until  the  regular  constable 
enters'  on  the  discharge  of  his  duties."  Code,  §4682. 

"Where  a  constable  was  appointed  by  the  sole  justice  in  a 
district  to  fill  the  vacancy  caused  by  a  failure  to  elect  a  con- 
stable, and  the  appointee  accepted  the  position  and  habitually 
exercised  the  functions  of  the  office,  a  levy  made  by  him  was 
not  void,  although  he  may  not  have  given  the  bond  and  taken 
the  oath  provided  by  law  before  entering  on  the  duties  of  his 
office.  He  was  a  de  facto  officer. 

"That  the  justice  who  appointed  him  resigned  and  moved  out 
of  the  county,  did  not  alter  the  case."  67/725. 

"A  justice  of  the  peace  must  be  one  of  the  persons  presiding 
at  a  constable's  election,  if  there  is  one  in  commission  to  be 
had  who  is  not  a  candidate.  Where  such  officer  acted  for  but  a 
portion  of  the  day,  the  election  was  rendered  illegal. 

"Whenever  then-  is  a  failure  to  elect  from  any  cause,  either 
that  the  election  is  illegal  or  there  is  no  candidate,  or  if  the 
election  be  legal  and  there  is  a  candidate,  if  he  fails  to  qualify 
and  give  bond,  then,  in  legal  contemplation,  there  is  a  vacancy, 


80  CONSTABLES 

and  it  is  the  duty  of  the  magistrates  to  appoint.  The  county 
commissioners  have  no  authority  to  order  a  new  election." 
65/260. 

SEC.  213.  JUSTICES  MAY  APPOINT  EXTRA  CONSTABLES. 
''When  the  constables  of  the  district  are  absent  temporarily  from 
the  district,  the  like  power  may  be  exercised ;  or  when  the  con- 
stable or  constables  of  the  district  are  engaged  in  attendance 
on  the  county,  city,  or  superior  courts,  or  there  is  manifest  in- 
jury or  delay  to  the  business  of  the  justice's  courts,  the  justices 
of  the  peace  shall  have  power  to  appoint  one  or  more  constables 
and  discharge  the  same  at  discretion:  Provided,  that  the  con- 
stables appointed  hereunder  shall  be  required  to  give  the  same 
bond  required  from  the  regular  constables,  if  said  special  con- 
stables shall  be  appointed  to  serve  for  a  period  longer  than  ten 
days."  Code,*  §4683. 

"For,  even  if  no  exigency  has  arisen  which  would  authorize 
the  appointment  of  special  constables  under  section  4085  or 
4086  of  the  Civil  Code,  certainly  as  between  the  applicant  for 
the  writ  of  mandamus  and  the  other  regularly  elected  con- 
stable for  the  district  the  magistrate  would  have  a  large  dis- 
cretion in  apportioning  the  writs  and  processes  to  be  served." 
134/396,  398  (67  S.  E.  825). 

"Where  the  judge  of  the  county  court,  who  is  authorized,  if 
the  bailiff  is  sick,  ete.,  to  appoint  any  person  to  execute  a  pro- 
cess, appointed  the  person  who,  as  agent  of  the  landlord,  had 
sued  out  a  distress  warrant,  to  execute  and  return  the  same,  and 
such  person  made  a  levy  upon  property  which  was  claimed  by 
a  third  person: 

"Held ;  that  the  appointment  was  illegal  and  the  levy  void,  and 
it  was  not  error  in  the  court  below  to  order  the  levy  to  be  dis- 
missed." 52/341. 

"Inasmuch  as  section  4086  of  the  Civil  Code  confers  upon 
justices  of  the  peace  power  and  authority,  where  "there  is  mani- 
fest" injury  or  delay  to  the  business  of  the  justices'  courts,"  to 
appoint  one  or  more  additional  constables  and  to  discharge 
them  in  their  discretion,  and  requires  the  constables  so  ap- 
pointed to  give  the  same  bond  as  regular  constables,  if  such  addi- 
tional constables  are  appointed  to  serve  for  a  period  longer 
than  ten  days,  the  courts  will  not,  upon  the  application  of  a 
regularly  elected  constable  for  leave  to  file  an  information  in 
the  nature  of  a  writ  of  quo  warranto,  interfere  with  the  discre- 
tion of  a  justice  of  the  peace  in  appointing  a  special  constable 


•CONSTABLES  81 

under  this  section.  The  appointment  being  a  matter  within  the 
discretion  of  the  justice  of  the  peace,  an  issue  of  fact  can  not  be 
raised  by  an  allegation  in  the  petition  that  there  was  no  neces- 
sity for  the  appointment,"  108/809  (34  S.  E.  183). 

SEC.  214.  APPOINTMENT  OF  CONSTABLES.  "If  there  are 
two  justices  of  the  peace,  and  they  can  not  agree  upon  an  ap- 
pointment, the  one  who  has  served  longer  as  such,  continuously 
and  immediately  preceding,  shall  appoint;  if  there  are  two  con- 
stables to  appoint,  each  justice  shall  appoint  one."  Code, 
§4684. 

-SEC.  215.  WHEN  BUT  ONE,  AY  HO  MAY  APPOINT.  "If 
there  is  only  one  justice  of  the  peace,  he  may  make  the  appoint- 
ment ;  but  it  shall  be  in  the  discretion  of  the  justices,  whether 
one  or  two,  to  appoint  the  second  constable  or  not,  if  there  is 
one  in  office,  or  one  or  two  if  there  is  none  in  office."  Code, 
§4085. 

SEC.  21G.  WHEN  JUSTICE  FAILS  TO  APPOINT.  "If  the 
justices  of  the  peace  of  any  district  fail  or  refuse  to  have  as  much 
as  one  constable  in  their  district  for  as  long  as  thirty  days 
from  the  time  such  .a  vacancy  occurs,  the  ordinary  of  the  county 
shall  fill  the  appointment."  Code,  §4686. 

SEC.  217.  QUALIFICATIONS  OF  CONSTABLE.  "The  eligi- 
bility for  constables  is  the  same  as  that  for  justices  of  the  peace; 
but  any  persons  may  be  appointed  constables  to  fill  vacancies, 
or  to  answer  some  emergency,  who  are  at  the  time  residents  of 
the  district."  Code,  §4687. 

SEC.  218.  DISQUALIFICATIONS.  "Constables  can  not  be 
sheriffs  or  sheriff's  deputies,  nor  can  they  be  clerks  of  the  supe- 
rior courts,  nor  can  such  officers  be  constables."  Code,  §4688. 

"Where  a  constable  was  specially  deputized  by  the  sheriff, 
and  sworn  in,  for  the  purpose  of  serving  a  particular  writ,  he 
became  a  de  facto  deputy  sheriff,  and  service  by  him  was  legal." 
61/272. 

"A  town  marshal  may  be  a  bailiff.  There  is  nothing  incom- 
patible or  inconsistent  in  the  exercise  of  the  powers  and  duties 
of  both  offices  by  the  same  person."  70/646,  647  (5). 

SEC.  219.  OATH.  "Each  constable,  before  entering  on  the 
duties  of  his  office,  must  take  and  subscribe,  beside  the  oath  for 
all  civil  officers,  before  the  ordinary  of  his  county,  the  follow- 
ing oath :  'I  swear  that  I  will  duly  and  faithfully  perform  all 


82  CONSTABLES  • 

the  duties  required  of  me  as  constable  of  the  county  of -, 

according  to  the  best  of  my  ability  and  understanding.  So 
help  me  God.' '  Code,  §4689. 

"Where  a  constable  was  appointed  by  the  sole  justice  in  a 
district  to  fill  the  vacancy  caused  by  a  failure  to  elect  a  con- 
stable and  the  appointee  accepted  the  position  and  habitually 
exercised  the  functions  of  the  office,  a  levy  made  by  him.  was 
not  void,  although  he  may  not  have  given  the  bond  and  taken 
the  oath  provided  by  law  before  entering  on  the  duties  of  his 
office.  He  was  a  de  facto  officer. 

"That  the  justice  who  appointed  him  resigned  and  moved  out 
of  the  county,  did  not  alter  the  case."  67/725. 

"An  election  for  constable,  held  under  a  general  law  which 
provides  for  such  an  election  on  the  same  day  in  each  militia 
district  of  the  several  counties  of  this  State,  is  a  State  election 
within  the  meaning  of  the  statute  which  forbids  the  sale  or 
furnishing  of  intoxicating  liquors  to  any  person  on  days  of  elec- 
tion, State,  county,  or  municipal,  and  the  fact  that  the  official 
duties  of  the  officers  elected  are  confined  to  respective  counties 
or  subdivisions  of  counties  does  not  change  the  character  of  the 
election."  107/697  (33  S.  E.  439). 

SEC.  220.  CONSTABLES  APPOINTED  ON  EMEKGENCY.  "Con- 
stables appointed  to  answer  some  sudden  emergency,  as  in  sec- 
tion 4682,  may  take  and  subscribe  said  oath  before  the  justices 
of  the  peace  appointing  them,  who  shall  file  the  same  in  the 
office  of  the  ordinary."  Code,  §4690. 

SEC.  221.  BONDS  OF  CONSTABLES.  "All  constables,  except 
those  thus  appointed,,  must,  before  entering  on  the  discharge  of 
their  duties,  give  a  bond  payable  to  the  ordinary  of  the  county, 
and  their  successors,  with  two  good  securities  resident  in  the 
county,  in  the  sum  of  five  hundred  dollars,  to  be  approved  by 
such  ordinary,  which  shall  be  by  him  filed  in  his  office  and 
recorded  in  a  book  kept  for  that  purpose :  Provided,  that  con- 
stables in  militia  districts  outside  of  incorporated  towns  shall 
give  bond  for  the  sum  of  two  hundred  dollars."  Code,  §4691. 

"It  is  clear  from  the  facts  disclosed  by  the  record  that  the 
judgment  was  dormant  when  the  execution  was  placed  in  the 
constable's  hands.  More  than  seven  years  had  elapsed  from 
the  rendition  of  the  judgment,  to  wit,  May,  1887,  to  January, 
1895.  It  being  dormant,  the  constable  had  no  right  or  au- 
thority to  levy  the  execution  issued  thereon,  and  if  he  failed  to 
do  so,  the  sureties  on  his  bond  are  not  liable  for  his  failure. 


CONSTABLES  83 

"But  it  is  alleged  that  the  judgment  was  not  dormant,  be- 
cause the  execution  had  several  entries  thereon  which  would 
serve  .to  keep  it  alive.  The  copy  in  the  record  does  show 
that  there  are  several  entries  thereon,  and  if  made  by  an  officer 
authorized  to  execute  the  execution,  the  judgment  would  not 
have  been  dormant.  But,  in  an  amendment  to  the  petition,  it 
is  alleged  that  the  entries  were  made  by  the  plaintiffs  in  the 
execution,  acknowledging  the  receipt  of  certain  payments  made 
by  the  defendant  thereon.  These  entries  were  not  made  by  an 
officer  authorized  to  execute  the  process.  The  Civil  Code,  §3761, 
requires  these  entries  to  be  made  'by  an  officer  authorized  to 
execute  and  return  the  same,'  in  order  to  prevent  the  judgment 
from  becoming  dormant.  The  entries,  not  having  been  made 
by  an  officer  authorized  to  execute  and  return  it,  but  by  the 
plaintiffs  themselves,  are  not  such  entries  as  will  prevent  the 
dormancy  of  the  judgment."  109/342  [34  S.  E.  598]. 

"The  Political  Code,  Section  12,  expressly  provides  that  upon 
all  bonds  taken  from  public  officers,  suit  may  be  brought  *by 
any  person  aggrieved  by  the  official  misconduct  of  the  officer, 
in  his  own  name,  in  any  court  having  jurisdiction  thereof, 
without  any  order  for  that  purpose.'  A  constable  is  a  public 
officer  who  is'  required  by  law  to  give  bond  conditioned  on  the 
faithful  performance  of  his  duties.  Civil  Code,  §4094.  And  if 
he  commits  a  breach  thereof,  he  and  the  sureties  on  his  bond 
may  be  sued,  no  preliminary  suit  against  him  being  requisite 
to  entitle  the  aggrieved  party  to  sue  on  the  bond.  Jefferson 
v.  Hartley,  81  Ga.  716  [9  S.  E.  174]."  122/844  (51  S.  E. 
36). 

"The  bond  of  a  constable,  made,  with  one  security,  instead  of 
two,  as  directed  by  Statute ;  Held,  to  be  a  good  voluntary  bond, 

by  the  Common  Law.     Whether  good  as  a  statutory  bond 

Query? 

"Suit  was  commenced,  and  a  verdict  rendered  in  favor  of  the 
Justices,  &c.,  for  the  use  of  James  B.  Dill,  against  Azariah 
Ennis,  as  surety,  in  the  following  bond : 

"Georgia,  Scriven  County. 

"Know  all  men  by  these  presents,  that  we,  William  H. 
Bryan  and  Azariah  Ennis,  are  held  and  bound  unto  the  Jus- 
tices of  the  Inferior  Court  of  said  county,  in  the  just  and  full 
sum  of  five  hundred  dollars,  for  which  we  bind  ourselves,  our 
heirs,  and  our  executors  and  administrators,  severally  and 
jointly.  Now  the  above  bonds  are  such,  that  if  the  said  Will- 


84  CONSTABLES 

< 

iam  H.  Bryan  do  faithfully  do  and  discharge  the  duties  re- 
quired of  him,  as  constable  for  said  county,  and  faithfully  dis- 
charge the  same,  the  above  bond  to  be  null  and  void;  ether- 
wise  to  remain  in  full  force  and  virtue. 

"Signed  and  sealed  in  presence  of,  ) 

*!.•     00,    i         f  T         icon  WILLIAM  II.   BRYAN, 

this  8th  day  of  Jan.,  1839,       > 

T  T  T      -r,  t         AZARIAH    ENNIS. 

LEWIS  LEWIS,  J.  P. 

5/569. 

SEC.  222.  ORDINARY  MUST  CERTIFY  TO  FILING,  ETC. 
"When  such  oath  is  taken  and  filed  and  such  bond  given,  such 
ordinary  shall  issue  to  such  constable  a  certificate  of  such  facts 
and  make  an  entry  thereof  on  his  minutes,  which  certificate 
shall  answer  as  his  commission."  Code,  §4692. 

SEC.  223.  ADDITIONAL  SURETY.  "Constables  may  be  com- 
pelled to  give  additional  bonds  upon  complaint  made  on  oath 
before  the  ordinary,  if  after  the  hearing  such  ordinary  so  or- 
ders it  done  and  upon  failure  to  do  so,  they  shall  be  removed 
by  such  ordinary."  Code,  §4693. 

SEC.  224.  MAY  BE  RULED  IN  JUSTICE'S  COURT.  "They 
are  liable  to  rule,  attachment,  and  penalties  in  their  respective 
districts ;  but  in  default  of  any  justice  of  the  peace  in  such  dis- 
trict, or  if  there  are  such  who  refuse  to  serve,  they  may  be  ruled 
before  any  justice's  court  of  an  adjoining  district,  or  the  supe- 
rior court."  Code,  §4694. 

SEC.  225.  MAY  BE  RULED  IN  SUPERIOR  COURT.  "It  is 
optional  with  parties  to  rule  constables  before  the  superior 
court  of  their  respective  counties,  in  term  time,  on  the  same 
terms  that  justices  of  the  peace  are  ruled."  Code,  §4695. 

SEC.  226.     SPECIAL  DUTIES.     "It  is  their  duty — 

"1.  To  attend  regularly  all  terms  of  the  justice's  court  in 
their  respective  districts. 

"2.  To  attend  all  terms  of  the  superior  courts  of  their  re- 
spective counties,  when  summoned  by  the  sheriff  for  that  pur- 
pose. 

"3.  To  give  receipts  for  notes  or  other  liquidated  demands 
placed  in  their  hands  for  collection.  (A  constable  may  in  his 
official  capacity  receive  notes  and  other  liquidated  demands 
for  collection,  and  is  subject  to  rule  if  he  fails  to  pay  over 
the  proceeds  of  the  collection  to  the  person  entitled  thereto.  5 
App.  421  (63  S.  E.  517). 


CONSTABLES  85 

"4.  To  pay  over  money  promptly  as  collected  to  the  party 
entitled  thereto ;  and  in  cases  of  conflicting  claims  to  any  money, 
to  repprt  the  same  to  the  next  justice's  court  of  the  district 
where  they  are  amenable,  for  its  order  in  the  premises.  (Where 
all  collections  made  on  processes  from  a  justice's  court  by  the 
constable  thereof  were,  pursuant  to  an  agreement  between  him 
and  the  justice  of  the  peace,  delivered,  when  made,  to  the  latter, 
who  on  every  Saturday  distributed  all  amounts  thus  collected, 
.and  all  amounts  collected  by  the  justice  of  the  peace  and  his 
clerk  during  the  week,  to  the  parties  entitled  thereto;  held, 
that  the  amount  due  the  constable,  embraced  in  the  collections 
made  by  him,  which  were  held  for  him  by  the  justice  of  the 
peace,  could  be  subjected  to  the  debts  of  the  constable,  by  serv- 
ing garnishments  on  the  justice  of  the  peace.  131/563  (62 
S.  E.  989).) 

"5.  To  execute  and  return  all  warrants,  summonses,  execu- 
tions, and  other  processes  to  them  directed  by  lawful  authority. 
("It  is  no  ground  for  an  affidavit  of  illegality  that  a  fi.  fa.  from 
a  justice's  court  was  levied  by  a  constable  outside  of  the  dis- 
trict where  the  judgment  was  entered,  and  outside  of  the  county 
of  defendant's  residence,  when  it  appears  that  the  property 
levied  on  was  found  in  the  bailiwick  of  the  officer  making  the 
levy  nor  was  it  necessary  that  the  fi.  fa.  should  have  been  backed 
by  a  magistrate  of  the  county  of  the  defendant's  residence,  to 
authorize  the  levy  made  in  this  case."  70/647.  "When  a  Mag- 
istrate's execution  is  lost,  and  its  contents  proven,  and  also  the 
levy  on  the  land  by  a  Constable,  and  a  return  of  the  same  to 
the  Sheriff,  the  Court  will  presume  that  there  was  also  on  it, 
the  Constable's  entry  of  'no  personal  property  to  be  found/  &c. 
The  general  rule  is,  that  when  an  officer  is  required  to  do  an  act, 
the  omission  to  do  which  would  make  him  guilty  of  a  culpable 
neglect  of  duty,  it  ought  to  be  intended  that  he  has  duly  per- 
formed it,  unless  the  contrary  is  made  to  appear."  6/188.  "It. 
is  the  duty  of  the  Constable  to  make  an  entry  of  service  on  the 
summons  or  warrant,  in  writing,  and  sign  such  return."  9/471. 
"Under  section  4142  of  the  code,  the  constable  of  a  militia  dis- 
trict other  than  that  from  the  justice's  court  of  which  an  execu- 
tion issued,  may  levy  the  same  upon  the  property  of  the  de- 
fendant in  execution  in  any  militia  district  of  the  same  county, 
although  at  the  time  there  was  a  lawful  constable  in  the  latter 
district,"  99/459  (27  S.  E.  717).  "Prior  to  the  passage  of  the 
act  of  1869,  which  is  incorporated  in  section  4142  of  the  code, 


86  CONSTABLES 

executions  issued  from  justices'  courts,  being  addressed  to  all 
and  singular  the  constables  of  the  county  within  which  they 
•were  issued,  might  be  well  executed  within  his  own  bailiwick 
by  any  constable  in  any  district  within  the  county;  for  by  sec- 
tion 478  of  the  code  it  was  made  the  duty  of  constables  to 
execute  and  return  all  warrants,  summons,  executions,  and 
other  process  to  them  directed  by  lawful  authority.  The  act 
of  1869,  to  which  reference  has  above  been  made,  was  entitled, 
'An  act  to  extend  the  jurisdiction  of  constables  in  the  several 
counties'  in  this  State.'  It  provides,  'That  from  and  after  the 
passage  of  this  act,  it  shall  be  lawful  for  any  constable  of  the 
several  counties  of  this  State  to  execute  and  return  any  process 
issued  by  a  justice  of  the  peace  or  notary  public  of  said  counties, 
but  he  shall  return  the  said  process  to  a  justice  of  the  peace  re- 
siding in  the  militia  district  where  the  defendant  or  defendants 
resided  at'  the  time  of  issuing  said  process.'  The  effect  of  this 
act  was  to  extend  the  territorial  area  of  the  constable's  jurisdic- 
tion so  as  to  enable  him  to  execute  process  of  magistrates' 
courts  in  districts  other  than  his  own.  So  that,  possessing  au- 
thority, before  the  passage  of  the  act,  to  execute  such  process  is- 
sued from  any  justice's  court  in  the  county  within  the  limits 
of  his  own  bailiwick,  the  effect  of  the  act  was  to  enable  him  to 
execute  such  process  in  any  bailiwick  within  the  limits  of  the 
county.  The  execution  of  this  process,  in  so  far  as  levy  and 
seizure  of  the  property  is  concerned,  is  consistent  with  the  other 
provisions  of  the  code  prescribing  the  duties  of  the  constable ; 
but  when  it  comes  to  the  sale  of  the  property  seized  under  such 
an  execution,  the  statute  requires  that  the  place  of  sale  shall  be 
at  the  court  ground  of  the  bailiwick  of  the  constable.  Code, 
§§4172,  .4172  (a).  The  case  of  Divine  v.  Bailey,  62  Ga.  235, 
is  readily  distinguishable  from  the  one  now  under  considera- 
tion, for  the  reason  that  in  that  case  the  question  was  upon  the 
validity  of  the  sale.  The  seizure  was  made  under  an  execu- 
tion issued  from  one  justice's  court  by  the  constable  of  another, 
who  undertook  to  sell  the  property  at  the  court  ground  of  yet 
another  militia  district.  So  that,  \vhile  in  so  far  as  the  mere 
seizure  of  the  property  was  concerned  he  was  acting  within  the 
limits  of  his  constabulary  authority,  when  he  undertook  to 
effectuate  the  seizure  by  making  a  sale  he  selected  a  time  and 
place  different  from  that  proscribed  by  law.  This  court  could, 
and  did,  therefore,  in  that  case  properly  hold  that  the  sale 
was  void.  The  question  under  consideration  in  that  case  was 


JURISDICTION  OF  THE  JUSTICE  COURT  87 

whether  the  sale  was  void,  and  the  conclusion  which  we  reach 
in  the  present  case  is  in  perfect  harmony  with  the  doctrine  ap- 
plied in  that.  We  are  not  inclined  to  agree  altogether  with 
(he  line  of  reasoning  adopted  by  the  court  in  stating  the  con- 
siderations which  induced  its  conclusions,  and  are,  therefore, 
not  inclined  to  extend  the  doctrine  of  that  case  beyond  the  neces- 
sary limits  of  the  question  expressly  decided  by  it.  In  the 
present  case  an1  execution  was  issued  from  one  district,  which 
\vas  levied  upon  land  in  the  district  from  which  the  judgment 
issued,  by  a  constable  residing  in  another  district,  and  a  claim 
interposed  by  a  third  person.  The  question,  therefore,  is  upon 
the  validity  of  a  levy,  and  not  upon  the  validity  of  a  sale." 
99/460  (27  S.  E.  717). 

"6.  To  perform  such  other  duties  as  are  or  may  be  required 
of  them  by  law,  or  which  necessarily  appertain  to  their  offices." 
Code,  §4696. 

SEC.  227.  PERSONS  ACTING  AS  CONSTABLES  AFTER  TERM  OF 
OFFICE  EXPIRES.  "If  any  constable  exercises  the  duties  of  his 
office  after  removal  from  the  district  where  he  was  elected  or  ap- 
pointed, he  is  subject  to  a  fine  of  fifty  dollars  for  every  such 
act,  to  be  recovered  before  any  justice  of  the  county  in  which 
lie  resides,  by  any  one  suing  for  the  same  -  -  one  half  to  the 
use  of  such  person,  the  other  half  to  the  use  of  the  county." 
Code,  §4697. 


CHAPTER  IX 
JURISDICTION  OF  THE  JUSTICE  COURT. 

SEC.  228.  CIVIL  JURISDICTION.  "They  have  a  general  and 
original  jurisdiction : 

"1.  In  all  civil  cases  arising  ex  contractu,  and  in  cases  of 
injuries  or  damages  to  personal  property,  where  the  principal 
sum  claimed  does  not  exceed  one  hundred  dollars,  and  in  cases 
where  the  debt  has  been  larger  and  the  balance  due  is  not  more 
than  said  amount. 

"2.  Of  contests  for  the  mere  possession  of  personal  prop- 
erty. 

"3.  Of  forcible  entries  and  detainers,  or  either,  with  the 
aid  of  a  jury  of  twelve  men,  as  prescribed  by  this  Code. 


88  JURISDICTION  OP  THE  JUSTICE  COURT 

"4.  Of  all  other  causes  when  jurisdiction  is  constitutionally 
given  them,  in  their  capacity  as  courts  of  justice."  Code, 
§4665. 

SEC.  229.  LIMITS  OF  JURISDICTION.  "Their  civil  jurisdic- 
tion extends  over  persons  resident  of  their  respective  districts 
and  itinerant  persons,  and  to  persons  of  other  districts  in  cer- 
tain particular  cases  provided  for  in  this  Code."  Code,  §4667. 

SEC.  230.  SUITS  ON  SEVERAL  NOTES  FOR  SAME  DEBT. 
"The  justices'  courts  have  jurisdiction  of  all  suits  brought  on 
two  or  more  promissory  notes,  or  other  evidences  of  debt,  not 
exceeding  one  hundred  dollars  principal  each,  although  given 
between  the  same  parties  for  one  and  the  same  debt  or  consid- 
eration." Code,  §4709. 

SEC.  231.  TEN  DAYS  RESIDENCE  GIVES  JURISDICTION. 
"Ten  days  residence  of  a  party  within  a  militia  district  shall 
be  sufficient  to  give  the  justice's  court  of  such  district  jurisdic- 
tion of  suits  against  him."  Code,  §4710. 

SEC.  232.  CO-OBLIGORS  SUED  IN  EITHER  DISTRICT.  "When 
a  bond,  note,  bill,  open  account,  or  other  evidence  of  debt  shall 
be  against  several  persons  residing  in  different  counties  or  dis- 
tricts, the  plaintiff  shall  have  his  option  to  bring  suit  on  such 
demand  in  either  of  such  counties  or  districts."  Code,  §4711. 

SEC.  233.  SUIT  AGAINST  MAKER  AND  INDORSER,  WHERE 
BROUGHT.  "The  maker  and  indorser  of  a  promissory  note,  or 
other  evidence  of  debt,  not  exceeding  one  hundred  dollars  prin- 
cipal, may  be  sued  in  the  district  of  the  maker's  residence  and 
the  indorser  may  be  served  with  process  in  the  same  manner  as 
that  prescribed  in  the  case  of  joint  contractors."  Code,  §4714. 

SEC.  234.  IN  CASE  OF  CO-OBLIGORS.  "In  case  where  suit 
is  brought  against  joint  obligors  or  joint  promisors,  or  other 
joint  debtors,  and  in  cases  where  the  justice  of  the  peace  is  a 
party,  and  in  cases  where  there  is  no  justice  in  the  district  of 
the  defendant's  residence, — in  all  these  and  like  cases,  the  con- 
stable of  the  district  in  which  suit  is  brought  may  serve  all 
processes  on  all  the  parties,  and  do  all  other  legal  acts  required 
of  him  in  the  progress  of  such  suit,  in  any  district  of  the 
county."  Code,  §4719. 

SEC.  235.  WHERE  DEFENDANTS  RESIDE  IN  DIFFERENT 
COUNTIES.  "In  suits  in  the  justices'  courts  of  this  State  against 
joint  obligors,  joint  contractors,  copartners,  joint  trespassers, 
makers  and  inclorsers  of  promissory  notes,  drawers,  acceptors, 


JURISDICTION  OF  THE  JUSTICE  COURT  89 

and  indorsers  of  foreign  and  inland  bills  of  exchange,  or  other 
like  instruments,  if  any  of  the  defendants  reside  out  of  the 
county,  the  justice  of  the  peace  shall  issue  a  second  original 
and  copy  for  such  other  county  or  counties,  and  forward  the 
same  to  any  constable  of  the  county  where  such  defendant  may 
reside,  who  shall  serve  the  copy  and  return  the  second  original 
with  his  entry  thereon  to  the  justice  of  the  peace  before  whom 
the  suit  is  brought."  Code,  §4720. 

SEC.  236.  DECISIONS  RELATING  TO  JURISDICTION.  "The 
Constitution  declares  that  justice's  courts  shall  sit  at  fixed 
times  and  places.  Const,  art.  6,  sec.  7,  par.  2  (Civil  Code 
(1910),  Section  6524).  By  section  4705  of  the  Civil  Code 
it  is  declared  that  'All  judgments  of  such  justices  rendered,  in 
any  civil  cause,  anywhere  else  than  at  the  place  for  holding 
their  courts  lawfully  appointed  are  void.'  No  provision  is 
made  for  holding  such  courts  by  agreement  at  other  places  than 
those  fixed  by  law.  Accordingly,  the  trial  and  verdict  in  this 
case  were  not  merely  irregular,  but,  by  the  positive  terms  of  the 
statute,  were  void."  143/554  (85  S.  E.  861). 

A  justice's  court  has  no  jurisdiction  to  foreclose  a  material 
man's  lien  or  lien  for  work  done  on  real  property.  142/590 
(83  S.  E.  239). 

Parties  can  not  by  consent  make  a  valid  judgment  where  the 
same  has  been  rendered  otherwise  than  at  the  regular  fixed 
place.  144/292  (86  S.  E.  1085). 

When  the  cause  of  action  is  ambiguous,  the  same  should  be  so 
construed  as  to  uphold  the  jurisdiction  of  the  justice's  courts. 
17  App.  53  (86  S.  E.  258). 

"The  amount  in  controversy  which  fixes  the  jurisdiction  of  a 
justice's  court  is  'the  principal  sum  claimed.'  Civil  Code, 
§4665  (1). 

"Where,  by  a  construction  favorable  to  the  jurisdiction  of  a 
justice's  court  over  the  subject-matter  of  a  plea  in  recoupment 
interposed  to  a  suit  on  contract,  it  reasonably  appears  that  the 
defendant  seeks  to  recover  damages  arising  under  the  contract, 
for  a  breach  of  warranty,  rather  than  for  a  tort  by  an  action 
for  deceit,  such  damages  arising  under  the  contract  may  be  set 
up  in  extinguishment  of  the  plaintiff's  demand  ex  contractu, 
and  a  recovery  had,  if  warranted  by  the  evidence,  for  the  excess 
of  the  demand  of  the  defendant  over  that  of  the  plaintiff,  pro- 
vided such  balance  does  not  exceed  the  jurisdiction  of  the 
court. 


90 

"No  notice  to  a  plaintiff  of  the  filing  of  a  plea  of  recoup- 
ment by  the  defendant,  claiming  damages  in  excess  of  his  de- 
mand on  an  unconditional  contract  in  writing,  is  necessary  to 
authorize  the  trial  of  a  case  in  a  justice's  court  at  a  term  subse- 
quent to  that  at  which  the  plea  is  filed  and  in  the  absence  of 
the  plaintiff  without  legal  excuse.  One  who  brings  a  suit  in 
any  forum  competent  to  render  a  legal  and  binding  judgment 
must  at  his  peril  follow  up  the  subsequent  proceedings  in  the 
case,  and  is  bound  by  the  action  of  the  court  therein,  where  the 
court  acts  within  its  jurisdiction  and  the  proceedings  are  other- 
wise legal."  17  App.  779  (88  S.  E.  703). 

Jurisdiction  as  to  amount  in  suit  on  note  including  attor- 
ney's fees  is  determined  without  any  reference  to  such  fees, 
where  no  notice,  as  required  by  law,  is  alleged.  17  App.  450 
(87  S.  E.  679). 

A  verdict  is  not  authorized  unles's  a  summons  has  been  issued. 
17  App.  699  (87  S.  E.  1092). 

A  plaintiff  is  not  required  nor  is  he  bound  to  claim  all  the 
damages  that  he  is  entitled  to  and  thereby  prevent  a  justice 
court  having  jurisdiction.  16  App.  388  (85  S.  E.  615)  ;  127/ 
778  (56  S..E.  1026). 

A  justice's  court  has  no  jurisdiction  to  foreclose  a  lien  on 
real  estate.  15  App.  369  (83  S.  E.  448). 

An  attempt  to  foreclose  a  lien  may  be  cured  by  amendment 
striking  all  reference  thereto.  15  App.  455  (83  S.  E.  896). 

"In  practically  all  cases  arising  in  justice's  courts,  there  arc 
no  pleadings  from  which  the  issue  between  the  parties  can  be 
accurately  ascertained,  and  in  such  cases,  the  issue  raised  is 
raised  by  the  evidence  adduced  on  the  trial."  15  App.  814  (84 
S.  E.  211). 

You  can  waive  the  tort  and  sue  on  the  contract  ex  contractu 
in  a  justice's  court.  14  App.  597  (2)  (81  S.  E.  800). 

All  the  facts  necessary  to  give  a  court  jurisdiction  need  not 
appear  on  the  face  of  the  execution.  14  App.  380  (80  S.  E. 
909). 

"A  justice's  court  has  no  jurisdiction  of  an  action  of  tort  un- 
less the  alleged  wrong  consisted  of  injuring  or  damaging  per- 
sonal property  belonging  to  the  plaintiff.  Such  a  court,  there- 
fore, can  not  lawfully  entertain  or  try  a  suit  against  a  defendant 
for  fraudulently  removing  property  subject  to  a  lien  held  by 
the  plaintiff,  or  for  conspiring  with  another  so  to  do."  105/88 
(31  S.  E.  736). 


JURISDICTION  OF  THE  JUSTICE  COURT  91 

"A  summons  in  a  justice's  court  required  the  defendant  to 
appear  and  'answer  the  demand  of  B.  H.  Stripling  in  an  action 
for  damages  for  breach  of  contract  in  the  sum  of  $100.'  At- 
tached to  the  summons  was  a  statement  of  the  alleged  cause  of 
action,  in  which  $100  was  set  forth  as  damages  for  the  breach 
of  a  contract.  Following  this  was  an  itemized  statement  show- 
ing damages  in  different  amounts,  resulting  from  various  causes, 
the  aggregate  amount  being  $132.50.  Following  this  statement 
were  these  words:  'To  amount  written  off  and  unclaimed,  to 
bring  case  within  J.  P.  jurisdiction,  $32.50.'  Held,  That  the 
suit  was  within  the  jurisdiction  of  the  justice's  court."  127/ 
778  (1)  (56  S.  E.  1026). 

"Where  a  running  account  continued  through  several  con- 
secutive years,  being  added  up  at  the  end  of  each  year,  the 
credits  subtracted,  and  the  balance  carried  forward  to  the  next 
year,  and,  after  the  account  had  thus  continued  for  several 
years,  the  aggregate  balance  was  more  than  one  hundred  dollars, 
the  creditor  could  not  divide  it  into  two  parts,  and  thus  bring 
each  within  the  jurisdiction  of  a  justice's  court.  Although  the 
creditor  might  have  sued  at  the  end  of  each  year,  if  the  balance 
at  the  end  of  the  year  was  charged  up  on  the  next  year's  account, 
and'  this  was  continued  through  several  years  without  a  settle- 
ment, the  whole  became  but  one  account  and  but  one  indebted- 
ness." 72/147. 

"Where  one  sold  to  another  on  credit  two  bills  of  merchandise 
on  different  days-  in  two  consecutive  months  of  the  same  year, 
the  presumption,  in  the  absence  of  any  proof  to  the  contrary, 
was  that  the  demand  arising  upon  the  two  sales  constituted  one 
entire  and  indivisible  account  in  favor  of'  the  seller  against  the 
purchaser;  and  this  being  so,  the  former  could  not  divide  the 
same  into  two  separate  accounts  predicated  respectively  upon 
the  two  sales,  so  as  to  bring  actions  thereon  within  the  jurisdic- 
tion of  a  justice's  court. 

"Where  two  such  actions  were  brought  and  a  plea  in  abate- 
ment for  want  of  jurisdiction  was  filed,  the  burden  of  proof  was 
upon  the  plaintiff  to  show  that  the  two  alleged  accounts  were 
not  one  and  the  same  account,  but  that  they  arose  upon  distinct 
and  separate  transactions."  97/802  (25  S.  E.  369). 

"Where  by  agreement  an  account  for  goods  sold  on  the  same 
day  was  divided  into  four  distinct  parts,  due  on  different  days, 
the  creditor  had  a  right  of  action  on  each  as  it  fell  due,  and  if 


92  JURISDICTION  or  THE  JUSTICE  COURT 

he  waited  until  all  had  fallen  due,  he  might  sue  on  them  sepa- 
rately or  unite  them,  and  he  was  not  compelled  to  unite  them 
so  as  to  prevent  the  jurisdiction  of  a  justice's  court. 

"  'Liquidated,'  as  used  in  section  447  of  the  Code,  as  to 
dividing  claims  so  as'  to  bring  them  within  the  jurisdiction  of  a 
justice's  court,  is  equivalent  to  settled,  acknowledged  or  agreed. 

"Where  suits  were  brought  on  open  accounts  in  a  justice's 
court,  and  personal  service  had,  if  the  defendant  failed  to  appear 
and  defend,  cases  were  properly  considered  in  default,  and 
judgments  were  properly  rendered  without  proof  of  the  ac- 
count." 76/631. 

"A  running  book  account,  all  the  items  of  which  have  matured 
at  the  time  of  the  suit  can  not  be  split  into  separate  parts,  with- 
out the  consent  of  the  defendant,  for  the  purpose  of  bringing 
each  part  within  the  jurisdiction  of  a  justice's  court;  the  ac- 
count constitutes  one  demand,  and  all  the  items  thereof  must 
be  included  in  a  single  suit.  If  the  running  account  thus  indi- 
visible is  divided  into  separate  parts,  a  recovery  upon  one  part 
would  ordinarily  be  a  bar  to  a  subsequent  action  for  any  items 
of  the  account  not  included  within  the  first  suit. 

"Where  a  running  account  containing  debits  and  credits  is 
divided  into  two  parts  and  a  suit  is  brought  on  each  part,  and 
to  the  first  suit  a  plea  to  the  jurisdiction  is  filed  in  the  court  in 
which  the  suit  originated,  on  the  ground  that  the  account  has 
been  improperly  split  into  two  parts  for  the  purpose  of  giving 
the  court  jurisdiction,  which  it  otherwise  would  not  have  of  the 
entire  account,  and  this  plea  is  decided  against  the  defendant 
on  the  necessary  ground  that  the  account  was,  as  a  matter  of 
law,  divisible,  and  he  acquiesces  in  such  adverse  decision,  al- 
though the  decision  was  erroneous,  he  is  estopped  from  renewing 
the  same  objection  to  the  second  suit,  brought  against  him  for 
the  items  of  the  account  not  included  within  the  first  suit." 
9  App.  733  (72  S.  E.  174). 

"A  justice's  court  has  no  jurisdiction  of  an  action  for  dam- 
ages to  realty. 

"Fences  permanently  affixed  to  land  constitute  a  part  of  the 
realty;  and,  as  a  general  rule,  unmatured  crops  growing  upon 
lands  belonging  to  the  owner  of  the  crops  are  to  be  regarded  as 
part  and  parcel  of  the  land. 

"It  follows  that  a  justice's  court  has  no  jurisdiction  of  an 
action  for  damages'  alleged  to  have  been  occasioned  by  the  negli- 


COMMENCEMENT  OF  SUITS  IN  JUSTICE  COURTS          93 

gence  of  a  railway  company  in  setting  fire  to  and  burning  fences 
enclosing  the  plaintiff's  land,  and  causing  damage  to  his  pasture 
and  to  a  crop  of  unmatured  cotton  growing  in  his  field."  98/ 
G26  (25  S.  E.  638). 


CHAPTER  X 

COMMENCEMENT  OF  SUITS  IN  JUSTICE  COURTS. 

SECTION  237.  WHAT  Is  A  CAUSE  OF  ACTION.  It  is  not  every 
claim  that  a  plaintiff  has  against  a  defendant  that  can  be  brought 
on  an  account.  The  statute  says  the  justice  of  the  peace  shall 
attach  to  the  summons  a  copy  of  the  note,  account,  or  cause  of 
action.  The  cause  of  the  action  may  not  be  an  account,  and  in 
such  case  the  plaintiff,  where  it  is  not  on  an  account,  must  set 
forth  in  his  cause  of  action  such  facts  as'  will  show  an  obliga- 
tion of  a  money  demand  on  the  part  of  defendant  to  the  plaintiff. 

"Relatively  to  the  law  of  pleading,  a  cause  of  action  is  some 
particular  right  of  the  plaintiff  against  the  defendant,  together 
with  some  definite  violation  of  that  right."  120/785  (48  S.  E. 
318). 

Where  the  suit  is  upon  a  note,  it  appears  that  the  defendant, 
the  maker  of  the  note  is  under  contract  to  pay  the  money.  So 
in  a  suit  upon  an  account,  where  an  account  is  made  out  against 
the  defendant,  the  court  can  see  that  the  plaintiff  is  insisting 
on  the  contract  on  the  part  of  defendant  to  pay  for  the  property 
bought.  When  the  suit  is  brought  upon  a  cause  of  action,  there 
must  be  attached  to  the  summons  a  statement  of  facts  that  shows 
the  defendant  is  under  some  legal  responsibility  to  the  plaintiff. 

SEC.  238.  SUITS,  How  COMMENCED.  "All  suits  before  jus- 
tices of  the  peace  and  notaries  public,  who  are  ex-officio  justices 
of  the  peace,  shall  be  commenced  by  written  summons,  which 
shall  be  issued  and  signed  by  the  justice  of  the  peace  or  notary 
public  of  the  district  in  which  the  suit  is  brought,  and  shall  be 
directed  to  any  lawful  constable  of  the  county  in  which  the  suit 
is  commenced,  commanding  the  defendant  to  appear  at  the  time 
and  place  of  trial,  which  time  and  place  shall  be  specified  in 
said  summons,  and  such  justice  of  the  peace  or  notary  public 
shall  attach  a  copy  of  the  note,  account,  or  cause  of  action  sued 
on,  to  said  summons  at  the  time  the  same  is  issued."  Code, 
§4715. 


94          COMMENCEMENT  OF  SUITS  IN  JUSTICE  COURTS 

SEC.  239.  WHAT  Is  COMMENCEMENT  OF  SUIT.  "The  date 
of  the  issuing  of  the  summons  shall  be  considered  the  commence- 
ment of  the  action."  Code,  §4716. 

SEC.  240.     SUMMONS,  AND  FORM  THEREOF. 

Georgia,    County. 

JOHN  DOE        }  Suit  in  Justice  Court  of  the 

VS.  /•  District,   G.   M.,   of  said   County, 

EICHARD  ROE     )  . Term,  19 .... 

To  All  and  Singular,  the  Constables  of  said  County,  Greeting: 

The  defendant,  of  said  District  and  County,  is  hereby  com- 
manded to  be  and  appear  at  the  next  regular  term  of  the  Justice 

Court  in  and  for  said  district  to  be  held  on  the day 

of ,  19.  .  .  .,  at  ten  o'clock,  A.  M.,  at  the  usual 

place  of  holding  the  Justice  Court  in  said  district  at  the  court- 
house in  the  city  of ,  then  and  there  to  answer 

plaintiff's1  demand  upon  a  certain  note,  a  copy  of  which  is 
hereto  attached.  And  in  default  thereof,  the  Court  will  proceed 
as  to  justice  shall  appertain.  Herein  fail  not. 

Given  under  my  hand  and  official  signature  this  the 

day  of ,  19 

...,  J.  P. 

The  law  says  that  the  time  and  place  must  be  specified  in  the 
summons.  Of  course  there  is  no  trouble  about  specifying  the 
date.  It  has  been  the  practice  to  specify  the  place  simply  by 
saying,  "at  the  usual  place  of  holding  the  justice  court  in  and 
for  said  district."  It  is  necessary  in  the  city  where  the  courts 
of  the  justice  of  the  peace  and  the  notary  public  are  held  at 
different  places  to  specify  the  exact  locality.  It  is  better  in  any 
summons  to  specify  "at  the  court  house  in  said  district."  The 
summons  should  read  this  way :  "to  be  and  appear  at  the  usual 
place  of  holding  justice  courts  in  and  for  said  district  at  the 
court  house."  There  is  no  direct  adjudication  on  this  point 
as  to  the  form  of  a  summons,  but  there  is  no  reason  why  the 
statute  should  not  be  followed,  since  when  the  summons  is  right 
there  could  be  no  question  raised  about  it. 

The  law  says  "to  each  summons  shall  be  attached  a  copy  of 
the  note,  account  or  cause  of  action  sued  on."  Suppose  the 
cause  of  action  sued  on  is  a  note  that  has  provisions  for  attor- 
ney's fees.  It  has  been  decided  that  where  a  note  contains  a 
provision  for  attorney's  fees  and  there  is  no  reference  made  to 
this  in  the  summons  and  no  notice  given,  that  it  is  a  suit  simply 


COMMENCEMENT  OF  SUITS  IN  JUSTICE  COURTS          95 

for  the  principal  amount.  Take,  for  instance,  a  note  for  $100.00 
together  with  all  costs  of  collection,  including  10%  attorney's 
fees,  and  a  copy  of  the  note  is  attached  containing  this  pro- 
vision, the  result  is  that  it  is  a  suit  for  the  $100.00.  Again, 
if  the  note  is  for  $80.00  and  contains  a  provision  for  attorney's 
fees  as  above  set  forth,  and  is  intended  to  collect  the  attorney's 
fees,  the  proper  practice  here  would  be  to  state  in  the  summons 
"to  answer  plaintiff's  demand  on  a  certain  note  and  claim  for 
attorney's  fees  thereon,  a  copy  of  which  said  note  and  said 
claim  are  hereto  attached."  Then  attach  to  the  copy  note  a 
claim  for  attorney's  fees  which  may  be  in  this  form  :  "In  addi- 
tion to  the  principal  and  interest  on  said  note  plaintiff  claims  ten 
per  cent,  attorney's  fees  on  the  principal  and  interest  thereof, 
he  having  given  the  defendant  notice  in  writing  of  his  intention 
to  sue  this'  note  to  this  term  of  the  court,  and  that  he  would  claim 
said  attorney's  fees  on  the  principal  and  interest  unless  said  note 
was  paid  on  or  before  the  return  day  of  said  court." 

The  form  of  a  proper  notice  to  the  defendant  of  his  intention 
to  claim  attorney's  fees  on  said  note  appears  in  Part  II,  page 
175. 

Coming  back  to  a  suit  upon  the  note  for  $80.00,  the  summons 
would  be  as  follows: 
JOHN  DOE       "|       In  the  Justice  Court  of  the  ............ 

vs.  V           District,   G.    M.,   of  ................ 

EICHAED  ROE     j  County,  ..............  Term,  19  .... 

To  All  and  Singular,  the  Constables  of  said  County,  Greetings: 

The  defendant,  Richard  Roe,  of  said  district  and  county,  is 
hereby  commanded  to  be  and  appear  at  the  usual  place  for 
holding  the  Justice  Court  of  the  ...........  district,  G.  M., 

of  said  County,  at  the  court  house  in  ..................  ,  on 

the  ............  day  of  ....................  ,  19  ......  , 

at  ten  o'clock,  A.  M.,  then  and  there  to  answer  plaintiff's  de- 
mand on  a  certain  note  and  claim  for  attorney's  fees  thereon, 
a  copy  of  which  said  note  and  claim  are  hereto  attached.     In 
default,  the  Court  will  proceed  as  to  justice  may  appertain. 
Given  under  my  hand  and  official  signature  this  ........  day 

of  ........  .  ......    19  ....... 


Attach  to  this  summons  a  copy  of  the  note  and  also  a  copy 
of  the  claim  for  attorney's  fees. 

This  notice  of  intention  to  sue  and  claim  of  attorney's  fees 
can  be  made  in  manifold,  and  one  of  these  served  upon  the 


96          COMMENCEMENT  OF  SUITS  IN  JUSTICE  COURTS; 

defendant  ten  days  before  the  return  day,  and  the  other  one 
copy  as  evidence  of  the  contents  of  the  notice  served,  and  the 
same  may  be  put  in  evidence  as  has  been  decided  in  6  App.  275 
(65  S.'E.  35). 

Where  no  attorney's  fees  are  claimed,  even  though  expressed 
in  the  note,  a  party  can  sue  on  the  note  with  such  provision  in 
it  and  pay  no  regard  whatever  to  the  attorney's  fees.  In  such 
an  event  he  would  be  entitled  to  a  judgment  for  the  principal 
and  interest  due  on  the  note  and  the  cost  of  the  suit. 

SEC.  241.  SUIT  ON  NOTE  BY  PETITION  IN  JUSTICE  COURT. 
A  suit  on  a  note  may  be  brought  in  the  justice  court  by  petition, 
and  this  is  a  safe  way  of  filing  said  suit  where  attorney's  fees 
are  claimed.  In  such  case  this  form  of  petition  might  be 
adopted : 

To  the  Justice  Court  of  the District,  G.  M., 

of  said  County, ,  J.  P. 

The  petition  of  John  Doe  as  plaintiff  against  Richard  Roe, 
defendant,  shows: 

1st.  That  on  the day  of ,  19 , 

Richard  Roe  made  and  executed  to  plaintiff  a  certain  promis- 
sory note  for  the  sum  of Dollars,  principal 

debt,  with  interest  at per  cent,  per  annum  from  date, 

due ,  19  .•...,  which  note  contains  a  pro- 
vision that  in  case  said  note  is'  sued  or  collected  through  an 
attorney,  the  defendant  agrees  to  pay  all  costs  of  collection, 
including  ten  per  cent,  attorney's  fees. 

2nd.  That  the  defendant  refuses  and  fails  to  pay  said  note, 

and  that  on ,  19.  .  .  .,  plaintiff  served 

defendant  personally  with  a  notice  in  writing  of  his  intention 

to  bring  suit  on  said  note  to  the term,  19.  .  .  ., 

of  said  court  which  sits  on  the day  of 

19..:.,  and  that  unless  the  defendant  paid  said  note  on  or 

before  the  return  day  of  said  court  which  was  on , 

19.  .  .  .,  that  in  such  event  plaintiff  would  claim  the  attorney's 
fees  expressed  in  said  note  according  to  the  terms  thereof,  copy 
of  which  said  notice  is  hereto  attached  and  made  a  part  of  this 
petition. 

3rd.  Defendant  having  failed  to  pay  said  note  plaintiff 
brings  this  his  suit  to  said  term  of  said  court,  and  prays  that 
summons  issue  according  to  law  commanding  the  defendant  to 
be  and  appear  at  said  term  to  answer  plaintiff's  demand. 


COMMENCEMENT  OF  SUITS  IN  JUSTICE  COURTS          97 

To  this  petition  attach  copy  of  note  and  notice. 

It  will  be  noticed  that  this  petition  is  paragraphed.  It  is 
not  necessary  to  paragraph  a  petition  to  the  justice  court,  but 
it  is  simply  an  orderly  way  of  making  a  petition.  It  must  be 
remembered  that  where  a  petition  is  filed  in  the  justice  court, 
the  summons  can  not  be  dispensed  with,  but  the  petition  is 
simply  attached  to  the  summons  and  the  reference  to  the  peti- 
tion in  the  summons  might  be  in  this  language:  "to  answer 
plaintiff's'  demand  on  a  certain  promissory  note  and  claim  for 
attorney's  fees  as  shown  by  petition  and  copy  of  note  hereto 
attached." 

SEC.  242.  SUMMONS  IN  SUIT  ON  ACCOUNT  IN  JUSTICE  COURT. 
In  a  suit  on  an  account  in  a  justice  court,  the  summons  should 
read :  "To  answer  plaintiff's  demand  on  a  certain  account  for 

the  sum  of Dollars,  a  copy  of  which  is 

hereto  attached."  The  summons  in  such  case  may  be  in  the 
form  appearing  in  Part  II,  p.  173. 

The  plaintiff  need  not  verify  the  account  attached  to  the  sum- 
mons unless  he  sees  proper,  but  it  is  a  better  plan,  since  in  such 
case  the  defendant  must  meet  the  account  by  a  counter-affidavit 
denying  the  justice  and  fairness  of  said  account,  of  the  whole 
or  any  part  of  such  account.  The  defendant  will  not  be  allowed 
to  introduce  evidence  in  his  defense,  unless  such  counter-affidavit 
is  filed.  Where  he  files  the  counter-affidavit,  the  plaintiff  is 
required  to  offer  additional  evidence  in  proof  of  the  account 
before  the  court  is  authorized  to  give  judgment  therefor.  Where 
the  affidavit  is  filed  to  the  account,  and  is  met  by  a  counter 
affidavit  filed  by  the  defendant,  the  question  comes  then  upon 
the  trial  for  the  justice  to  determine  as  to  whether  the  defendant 
owes  the  account  or  not,  or  as  to  whether  there  is  any  part  of  it 
that  he  does  not  owe. 

The  statute  further  provides  that  a  plaintiff  can  not  verify 
an  account  by  an  affidavit  where  the  suit  is  against  an  adminis- 
trator or  executor  upon  the  contract  made  by  the  intestate  or 
dead  man  during  his  life  time.  Where  the  defendant  does  not 
owe  the  account  or  any  part  of  it,  under  the  statute  which  has 
been  quoted,  if  he  seeks  to  defend  the  case,  he  is  compelled  to 
file  a  counter-affidavit  to  such  account.  In  such  case,  the  form 
of  the  affidavit  may  be  as  follows : 


98          COMMENCEMENT  or  SUITS  IN  JUSTICE  COURTS' 

Georgia, :  County. 

In  the  Justice   Court  of  the.  . 


District,   G.   M.,   of, 
County,  Georgia. 


Term,  19 


JOHN  DOE 

vs. 
RICHARD  ROE 

SUIT  ON  ACCOUNT. 

Personally  appeared  before  the  undersigned  attesting  officer, 
Richard  Roe,  who,  being  duly  sworn,  on  oath  says  that  for 
answer  in  the  above  named  and  stated  case,  defendant  denies 
the  justice  and  fairness  of  said  account,  and  says  that  he  is  not 
indebted  to  the  plaintiff  upon  the  account  sued  on  in  any  sum 
whatever. 


Sworn  to  and  subscribed  before  me,  this 

the day  of ,  19 .... 

,J.P. 

This  counter-affidavit  must  be  filed  at  the  first  term.  If  for 
any  reason  the  case  is  not  tried  at  the  first  term,  this  counter- 
affidavit  might  be  filed  at  any  time  subsequently,  provided  the 
jiistice  has  not  rendered  judgment  in  the  case.  It  is  the  duty 
of  the  justice  where  there  is  personal  service  and  the  account 
is  verified,  to  render  ju'dgment  at  the  first  term  in  the  absence 
of  a  counter- affidavit.  The  defendant,  after  judgment  is  ren- 
dered against  him,  can  not  appeal  the  case  and  file  the  affidavit 
subsequently,  on  the  appeal.  He  is  concluded  by  the  judgment. 

SEC.  243.  SUMMONS,  How  SERVED.  "All  summonses'  shall 
be  served  upon  the  defendant  either  by  giving  him  a  copy  of  the 
same  in  person,  or  by  leaving  such  copy  at  his  usual  and  most 
notorious  place  of  abode,  at  least  ten  days  before  the  trial." 
Code,  §4717. 

SEO.  244.  SUMMONS,  BY  WHOM  SERVED.  "The  summons 
may  be  served  by  the  constable  of  the  district  in  which  the  suit 
is  commenced,  or  if  there  be  no  such  constable,  or  if  he  be  a 
party  to  or  interested  in  the  case,  such  summons  may  be  served 
by  any.  constable  of  the  county ;  and  it  shall  be  lawful  for  any 
constable  of  the  several  counties  of  this  State  to  execute  and 
return  any  process  issued  by  a  justice  of  the  peace  or  notary 
public  of  said  counties,  but  he  shall  return  the  said  process  to 
a  justice  of  the  peace  residing  in  the  militia  district  where  the 
defendant  c/  defendants  resided  at  the  time  of  issuing  said 
process."  Code,  §4718. 


TRIAL  AND  JUDGMENT  99 

SEC.  245.  SHERIFFS  MAY  EXECUTE  JUSTICE  COURT  PROC- 
ESSES. "Sheriffs  or  other  deputies  may  serve  or  execute  all 
summonses,  executions,  or  other  processes  issued  from  justices' 
courts,  as  such  processes  may  now  be  served  or  executed  by 
constables,  and  for  such  services  shall  receive  the  same  fees  as 
are  now  allowed  constables:  Provided,  that  while  it  shall  be 
legal  for  the  sheriff  to  serve  justice  court  processes,  he  shall  not 
be  entitled  to  charge  the  defendant,  or  losing  party,  any  greater 
fees  than  those  now  allowed  by  law  to  constables  for  like  service ; 
but  if  the  party  wishing  any  process,  mesne  or  final,  served  and 
executed  will  pay  to  the  sheriff,  in  advance,  the  difference  in 
the  fees  now  allowed  to  constables  for  such  services  and  that 
allowed  sheriffs  for  serving  papers  issued  from  the  superior 
courts,  the  sheriff  shall  be  bound  to  serve  such  process."  Code, 
§4915. 

SEC.   246.     FORM  OF  ENTRY  OF  SERVICE.     The  constable 
should  endorse  upon  the  summons  a  return  of  service,  which 
may  be  in  this  form: 
Georgia, County. 

I  have  this  day  served  Richard  Roe  personally  with  a  true 

copy  of  the  within  summons.     This ,  19.  ... 

,  L.  C. 

OR: 
Georgia,   County. 

I  have  this  day  served  the  defendant,  Richard  Roe,  with  a 
true  copy  of  the  within  summons  by  leaving  the  same  at  his 

usual  and  most  notorious  place  of  abode.     This 

19 

,  L.  C. 

When  the  constable  has  served  the  summons  and  made  his 
return  upon  it,  he  should  return  the  original  summons  to  the 
justice  of  the  peace. 


CHAPTER  XI 

TRIAL  AND  JUDGMENT. 

SECTION  247.  CASKS,  WHEN  TRIED.  "All  cases  before  a 
justice  of  the  peace  stand  for  trial  at  the  time  and  place  desig- 
nated in  the  summons,  and  shall  be  then  and  there  tried,  unless 
continued  according  to  law."  Code,  §47-'!-!. 


100  TRIAL  AND  JUDGMENT 

SEC.  248.  DEFENSE  AT  FIRST  TERM.  "Whenever  the  de- 
fendant in  the  justices'  courts  on  an  unconditional  contract  in 
writing  makes  defense,  he  shall  make  such  defense  at  the  first 
term."  Code,  §4734. 

"Since  the  passage  of  the  act  of  October  16th,  1891  (Acts 
of  1890-91,  vol.  1,  p.  Ill),  it  is  not,  in  a  justice's  court,  essen- 
tial to  the  right  of  amending  a  plea  and  making  a  defense  to  a 
suit  upon  an  unconditional  contract  in  writing  that  the  de- 
fendant should  in  writing,  at  the  first  term,  file  his  defense. 
Appearance  and  marking  the  name  of  himself  or  counsel  on  the 
docket  is  in  that  court  equivalent  to  filing  the  general  issue,  and 
thereafter  any  other  proper  matter  of  defense  may  be  set  up  by 
amendment."  95/714  (22  S.  E.  653). 

The  defendant  in  a  justice's  court,  when  sued  on  an  uncondi- 
tional contract  in  writing,  must  appear  and  make  his  defense 
at  the  first  term,  either  by  pleading  or  by  the  marking  of  his 
name,  or  that  of  his  attorney,  on  the  docket.  Civil  Code,  §4134 ; 
95/714  (22  S.  E.  653)  ;  110/791  (36  S.  E.  75). 

"When  no  defense  whatever  is  made  at  or  before  the  first 
term  to  a  suit  in  a  justice's  court  on  an  unconditional  contract 
in  writing,  no  plea  can  be  filed  on  an  appeal  to  a  jury  from  the 
judgment  rendered  in  favor  of  the  plaintiff.  The  justice  did 
not  err  in  dismissing  the  appeal."  6  App.  154  (64  S.  E.  493). 

"It  is  too  late,  on  the  trial  of  an  appeal  in  the  superior  court 
from  a  judgment  rendered  in  a  justice's  court  upon  an  uncon- 
ditional contract  in  writing,  for  the  defendant  to  file  a  plea, 
when  it  affirmatively  appears  that  no  defense  whatever  was  made 
in  the  lower  court  at  or  before  the  first  term  of  the  case."  110/ 
791  (36  S.  E.  75). 

"When  a  suit  is  brought  on  an  unconditional  contract  in 
writing,  in  a  justice's  court,  and  the  defendant  appears  at  the 
first  term  and  files  a  plea,  and  the  case  is  appealed  to  the  superior 
court  and  such  plea  is  there  stricken,  it  is  error  for  the  judge 
to  enter  judgment  against  the  defendant  without  the  verdict  of 
a  jury."  125/43  (53  S.  E.  767). 

"In  Stanton  vs.  Burge,  34  Ga.  Rep.  435,  it  was  held  that  a 
plea  of  non  est  factum  might  be  filed  at  a  subsequent  term  of 
the  court  by  way  of  an  amendment  to  the  defendant's  pleadings, 
and  the  same  ruling  was  made  in  Akin  vs.  The  Ordinary  of 
Bartow  County,  54  Ga.  Rep.  59."  60/51. 

"The  plea  of  non  est  factum  may  be  filed  after  the  first  term, 
as  an  amendment  to  an  answer  duly  filed."  7  App.  153  (66 
S.  E.  546). 


TRIAL  AMD  JUDGMENT  101 

SEC.  249.  TRIAL  TERM.  "When  such  defense  is  thus  made, 
the.  cause  shall  stand  for  trial  at  the  next  term  (subject,  how- 
ever, to  continuance  as  provided  by  law)  :  Provided,  that  said 
cause  may  be  tried  at  the  term  when  said  plea  is  filed,  if  the 
plaintiff  or  his  attorney  is  present  consenting  thereto."  Code, 
§4735. 

SEC.  250.  CONTINUANCES.  "If  either  party  is  not  ready  for 
trial  at  the  time  and  place  designated  in  the  summons,  the  justice 
or  commissioned  notary  public  may  continue  the  case  upon  a 
sufficient  legal  showing.  But  neither  party  shall  be  entitled  to 
more  than  one  continuance,  unless  it  be  from  providential 
cause."  Code,  §4736. 

SEC.  251.  JUSTICE  TO  GIVE  JUDGMENT.  "When  cases  are 
tried,  the  justices  of  the  peace  shall  render  judgment  therein 
according  to  the  law  and  the  facts  of  each  case,  and  such  judg- 
ment shall  be  enforced  by  execution  unless  prevented  by  appeal 
or  other  lawful  means."  Code,  §4737. 

SEC.  252.  JUDGMENTS,  WHEN  VOID.  "All  judgments  of 
such  justices  rendered,  in  any  civil  cause,  anywhere  else  than 
at  the  place  for  holding  their  courts  lawfully  appointed  are 
void."  Code,  §4705. 

"It  is  the  proper  practice  for  a  Justice  of  the  Peade  not  only 
to  render,  but  to  write  out  his  judgment  at  the  court-ground 
before  he  adjourns  his  court."  81/199  (6  S.  E.  277). 

"Where  a  note  was  sued  upon  in  a  justice  court,  and  a  judg- 
ment rendered  at  the  house  of  the  justice,  instead  of  at  the 
regular  court  room,  both  the  judgment  and  execution  founded 
thereon  were  void."  66/595. 

"A  judgment  rendered  by  a  justice  of  the  peace  at  the  regular 
time  and  place  of  holding  his  court,  but  which  was  written  out 
and  signed  at  some  other  time  and  place  in  the  district,  is  not 
void.  The  word  'rendered,'  as  used  in  section  462  of  the  code 
(Civil  Code  (1910)  §578),  refers  to  the  making  up  and  an- 
nouncement of  the  judgment,  and  not  to  the  clerical  act  of 
reducing  it  to  writing."  11  App.  361  (75  S.  E.  335). 

SEC.  253.  DEFENDANT  MAY  PLEAD  AS  IN  SUPERIOR  COURT. 
"The  defendant  may  appear  at  the-  time  and  place  specified  in 
the  summons  served  upon  him,  and  plead  any  matter  of  defense 
to  the  action  which  would  be  allowed  to  suits  in  the  superior 
courts."  Code,  §4726. 


TRIAL  AND  JUDGMENT 

"Where,  to  a  suit  in  a  justice's  court,  the  defendant  pleaded 
a  set-off,  plaintiff  could  defend  against  such  plea  by  showing 
that  the  claim  on  which  it  was  based  had  been  settled,  without 
further  pleadings  for  that  purpose. 

"There  are  no  pleadings  in  a  justice's  court,  except  the  sum- 
mons and  a  copy  of  the  account,  note  or  cause  of  action  sued 
on:  the  defendant  may  plead  any  matter  of  defence  which 
would  be  allowed  to  suits  in  the  superior  court,  and  there  no 
special  pleadings  are  admitted."  7/366. 

SEC.  254.  NECESSITY  OF  WRITING.  Pleas  of  payment  and 
failure  of  consideration  and  other  pleas  in  justice  courts,  except 
non  est  fact-urn,  to  the  jurisdiction,  and  dilatory  pleas,  need  not 
be  filed  in  writing.  But  the  forms  next  following  are  given  so 
that  they  may  be  used  if  desired.  Other  pleas  may  be  found 
from  the  index  in  the  second  part  of  the 'book. 

•  SEC.  255.  DILATORY  PLEAS,  AND  ISToN  EST  FACTUM.  "All 
dilatory  pleas  must  be  filed  in  the  first  instance,  unless  the 
failure  to  do  so  is  shown  to  be  the  result  of  unavoidable  cause ; 
and  all  dilatory  pleas,  and  pleas  of  non  est  factum,  must  be 
verified  by  the  affidavit  of  the  defendant  at  the  time  of  filing 
the  same.'"'  Code,  §4727. 

Where  a  suit  is  brought  upon  a  promissory  note  and  a  plea 
of  non  est  factum  is  filed,  the  burden  is  upon  the  plaintiff  to 
show  the  execution  of  the  note  by  the  defendant  before  the  note 
can  go  in  evidence.  If  the  defendant  swears  to  the  note  to  the 
best  of  his  knowledge  and  belief,  the  plaintiff  can  put  his  note 
in  evidence  without  first  showing  its  execution,  but  the  defend- 
ant would  still  be  allowed  to  show  in  defense  that  he  never  ex- 
ecuted the  note  or  authorized  any  other  person  so  to  do  for  him. 

Form  of  plea  of  non  est  factum  may  be  as  followrs : 

"^        Suit  on  note  in  the  Justice  Court  of  the 

JOHN  DOE  District,   G.   M., 

vs*  . '. County,    Georgia. 

RICHARD  ROE    J  Terai)  19 

Now  comes  Richard  Roe,  defendant  in  the  above  named  and 
stated  case,  at  the  first  term,  and  for  plea  and  answer  therein, 
says :  This  defendant,  Richard  Roe,  did  not  sign  the  note  sued 
on  nor  authorize  any  other  pers'on  so  to  do  for  him,  and  the 
same  is  not  his  act  and  deed,  and  of  this  he  puts  himself  upon 
the  country. 

Defendant's  Attorney. 


TRIAL  AND  JUDGMENT  103 

Before  me,  the  undersigned  attesting  officer,  personally  came 
Richard  Roe,  who,  being  duly  sworn,  on  oath  says  that  the  facts 
and  things  set  out  in  the  foregoing  plea  are  true. 

RICHARD  ROE. 
Sworn  to  and  subscribed  before  me,  this 

the day  of ,19 

,  J-  P. 

"Where  suit  was  brought  on  a  promissory  note  in  a  justice's 
court,  the  plea  of  non  est  facturn  should  have  been  filed  at  the 
first  term:  and  where  it  was  not  filed  until  the  second  term, 
there  was  no  error  in  striking  it  on  demurrer  on  the  ground 
that  it  was  filed  too  late."  79/761  (4  S.  E.  879). 

SEC.  256.  PLEAS  IN  SUITS  ON  ACCOUNTS.  "Whenever  a  suit 
may  be  brought  on  an  open  account  and  the  same  is  verified  by 
the  plaintiff  as  provided  by  law,  the  plea  shall  either  deny  that 
the  defendant  is  indebted  in  any  sum  or  shall  specify  the  amount 
in  which  the  defendant  admits  he  may  be  indebted,  and  shall 
be  verified  as  required  by  law."  Code,  §4728. 

SEC.  257.  CONTRADICTORY  PLEAS.  "The  defendant  in  a 
suit  in  a  justice's  court  may  file  contradictory  pleas. 

"The  provision  in  the  practice  act  of  1895  (Civil  Code, 
§5057),  as  amended  by  the  act  of  1897  (Acts  1897,  p.  35), 
requiring  that  an  amendment  to  a  plea  containing  new  facts 
shall  have  affixed  thereto  an  affidavit  that  the  new  facts  were 
not  omitted  from  the  original  plea  for  the  purpose  of  delay, 
has  no  application  to  a  suit  in  a  justice's  court. 

"A  pleading  in  a  suit  in  a  justice's  court  which  purports  to 
amend  a  p'lea  theretofore  filed,  if  sufficient  in  itself  to  constitute 
a  complete  answer  to  the  suit,  may,  in  accordance  with  the 
liberal  rules  of  practice  of  force  in  that  court,  be  treated  as  a 
new  and  distinct  plea,  without  reference  to  the  original  plea." 
125/676  (54  S.  E.  753). 

SEC.  258.  PLEA  OP  SET-OFF.  "Debts,  as  a  general  rule, 
must  be  mutual  between  the  same  parties  at  the  commencement 
of  the  action,  to  be  set  off  against  each  other.  Every  plea  of 
set-off  must  set  out  the  demand  as  plainly  as  if  sued  on."  Code, 
§5668. 

The  following  form  may  be  used: 

(State  the  case). 

Now  comes  the  defendant  in  the  above  named  and  stated 
case,  and,  for  plea  and  answer  thereto,  says  that  at  the  time  of 


104  TRIAL  AND  JUDGMENT 

the  beginning  of  said  suit  plaintiff  was  indebted  to  defendant 
upon  an  open  account  (or  a  note  or  whatever  the  claim  may  be)", 
a  copy  of  which  is  as  follows: 

(Here  set  out  a  copy  of  the  account  and  note  or  cause  of 
action.) 

This  defendant  prays  that  the  same  may  be  set  off  against 
the  plaintiff's  claim,  if  any  he  has,  and  that  judgment  be  ren- 
dered in  favor  of  defendant  for  the  remainder  and  costs  of  suit. 


Defendant's  Attorney. 

If  the  plaintiff  sues  upon  an  account  and  it  is  verified  and 
it  is  desired  to  contest  the  justice  and  fairness  of  the  account,  a 
counter-affidavit  should  be  filed  where  a  plea  of  set-off  is  filed. 

SEC.  259.     PLEA  OF  FAILURE  OF  CONSIDERATION. 

(State  the  case). 

Now  comes  Richard  Roe,  defendant  in  the  above  named  and 
stated  case  and  for  plea  and  answer  therein  says  that  the  note 
sued  on  was  given  for  the  purchase  money  of  a  certain  bay  horse 
about  ten  years  old,  called  Ben,  which  plaintiff  sold  to  defend- 
ant; that  plaintiff  warranted  the  title  to  said  horse  and  that  the 
next  day  after  defendant  got  possession  of  the  horse  he  was 
levied  on  by  ......................  ,  L.  C.,  of  said  district 

and  county,  by  virtue  of  a  fi.  fa.  in  favor  of  John  Jones  against 
the  plaintiff  John  Doe,  and  was.  sold  at  constable's  sale  to  satisfy 
said  execution  against  said  plaintiff.  This  defendant  says  that 
the  title  to  said  horse,  the  same  being  the  consideration  of  said 
note,  has  totally  failed,  and  of  this  plaintiff  puts  himself  upon 
the  country,  and  prays  to  be  discharged  hence  with  his  reason- 
able costs. 

Defendant's  Attorney. 
Before  me,  ....  .................  ,  J.  P.,  personally  came 

Richard  Roe,  who,  being  duly  sworn,  on  oath  says  the  facts  and 
things  stated  in  the  foregoing  plea,  are  true. 

RICHARD  ROE. 

Sworn  to  and  subscribed  before  me,  this 
the  ......  day  of  ...........  ,  1  9  .... 


SEC.  260.     PLEA  OF  PARTIAL  FAILURE  OF  CONSIDERATION. 
(State  the  case.) 

Now  comes  Richard  Roe,  the  defendant  in  the  above  named 
and  stated  case,  and  for  plea  and  answer  therein  says  that  the 


TRIAL  AND  JUDGMENT  105 

consideration  of  the  note  sued  on  was  for  the  purchase  money 
of  a  certain  bay  hdrse,  called  Ben,  about  six  years  old,  which 
plaintiff  sold  to  defendant,  and  plaintiff  represented  at  the  time 
of  said  sale,  and  as  an  inducement  for  defendant  -to  purchase 
said  horse,  that  said  horse  was  perfectly  sound  and  healthy  and 
was  a  good  work  horse  and  capable  of  doing  full  work,  whereas 
in  fact  the  said  horse  was  not  sound,  in  that  (state  whatever 
defect  existed). 

This  defendant  says  that  by  reason  of  said  unsoundness  and 
defects  as  hereinbefore  set  out,  the  value  of  the  horse  was  re- 
duced at  least  one-half,  and  this  defendant  pleads  the  said 
amount  as  a  partial  failure  on  consideration  in  said  suit,  and 
prays  that  the  plaintiff's  demand  be  reduced  by  said  amount. 

Defendant's  Attorney. 
Before  me,  ....................  ,  J.  P.,  personally  came 

Richard  Roe,  who,  being  duly  sworn,  on  oath  says  that  the  facts 
and  things  stated  in  the  foregoing  plea,  are  true. 

RICHARD  ROE. 

Sworn  to  and  subscribed  before  me,  this 
the  ......  day  of  ............  ,  19.  .  . 

............................  ,  J-  P. 

SEC.  201.    PLEA  OF  PAYMENT. 

"\        Suit  on  note  in  the  Justice  Court  of  the 
...................  District,   G.   M., 


RICHAD  ROE 

lerm,  19  .... 

Now  comes  the  defendant  in  the  above  named  and  stated  case, 
and  for  plea  and  answer  therein,  says: 

That  he  paid  to  the  plaintiff  on  the  note  sued  on  on  the  .... 

day  of  ..................  ,  19.  .  .  .,  the  sum  of  $  .......... 

in  cash,  for  which  no  credit  is  entered  on  said  note  ;  also  on  the 
.........  day  of  ...................  ,  19  .  .  .  .  ,  he  paid  the 

plaintiff  the  sum  of  $  ............  in  cash,  for  which  no  credit 

is  entered  on  said  note,  and  this  defendant  prays  that  he  be 
allowed  said  credits. 


Defendant's  Attorney. 

Georgia, County. 

Before  me, ,  J.  P.,  personally  came 


106  TRIAL  AND  JUDGMENT 

Richard  Roe,  the  defendant,  who,  being  duly  sworn,  on  oath 
says  that  the  facts  and  things  stated  in  the  foregoing  plea,  are 
true. 

RICHARD  ROE. 

Sworn  to  and  subscribed  before  me,  this 
the  ......  day  of  ...........  ,  19  ____ 

' 


SEC.  262.  PLEA  TO  THE  JURISDICTION. 

^        Suit  on  note  in  the  Justice  Court  of  the 
JOHNDOE  ...................  District,   G.   M, 

•fTQ  ^  ' 

..................  County,    Georgia. 

RICHARD  ROE  * 


Now  comes  Richard  Roe,  the  defendant  in  the  above  named 
and  stated  case,  at  this  the  first  term,  and  for  plea,  says  : 

This  defendant,  Richard  Roe,  shows  that  he  is  not  a  resident 
of  the  ............  District,  G.  M.,  of  said  county,  and  was 

not  and  had  not  been  at  the  time  of  the  service  of  the  summons 
in  the  above  named  and  stated  case  upon  him,  and  that  the 
Justice  Court  of  the  ..........  District,  G.  M.,  of  said  county 

has  no  jurisdiction  of  his  person,  but  defendant  shows  that  he 
is  a  resident  of  the  ............  District,  G.  M.,  of  said  county, 

and  that  the  Justice  Court  of  this  said  district  has  jurisdiction 
of  the  person  of  this  defendant,  and  of  the  subject  matter  of 
said  case. 

Defendant's  Attorney. 
Before  me,  .....................  ,  a  Justice  of  the  Peace, 

in  and  for  said  county,  personally  came  Richard  Roe,  who, 
being  duly  sworn,  on  oath  says  that  the  facts  and  things  stated 
in  the  foregoing  plea,  are  true. 

RICHARD  ROE. 

Sworn  to  and  subscribed  before  me,  this 
the  ......  day   of  ..........  ,    19  ____ 


............................  ,     -      . 

SEC.  263.  DOCKETS  FURNISHED  TO  JUSTICES  AND  NOTARIES. 
"The  ordinaries,  or  other  tribunal  having  control  of  county 
matters,  shall  furnish,  at  the  expense  of  the  county,  good  and 
durable  dockets  to  each  justice  of  the  peace  and  notary  public 
ex-officio  justice  of  the  peace,  in  their  respective  counties.  Said 
dockets  shall  not  cost  more  than  two  dollars  each."  Code, 
§4677. 


TRIAL  AND  JUDGMENT  107 

SEC.  264.  DUTIES,  ETC.,  OF  JUSTICES.  "Justices  of  the 
peace  have  authority,  and  it  is  their  duty — 

"6.  To  keep  a  docket  of  all  causes  brought  before  them,  in 
•which  must  be  entered  the  names  of  the  parties,  the  returns  of 
the  officer,  and  the  entry  of  the  judgment,  specifying  its  amount 
and  the  day  of  its  rendition. 

"7.  To  carefully  file  away  and  label  all  papers  appertaining 
to  any  cause,  and  all  fi.  fas.  and  other  process  returned,  after 
being  satisfied,  entered  'nulla  bona,'  or  have  otherwise  dis- 
charged their  functions."  Code,  §4679. 

"In  an  action  upon  administrators'  bond,  the  original  justice 
court  summons  of  a  suit  against  them  was  not  admissible  to 
show  the  rendition  of  a  jiidgment  against  them  as  such.  The 
judgment  should  have  appeared  on  the  justice's  docket."  84/ 
147  (10  S.  E.  598). 

"In  justices'  courts  'resort  must  be  had  to  the  docket  entry, 
and  to  it  alone,  in  order  to  determine  in  a  given  case  whether 
or  not  there  was  a  valid  and  lawful  judgment.' '  3  App.  561 
(60  S.  E.  319).  • 

"There  is  no  such  officer  created  by  law  as  a  clerk  of  a 
justice's  court. 

"If  a  justice  of  the  peace  enters  his  judgment  on  the  docket, 
it  is  not  void,  because  unsigned.  But  an  entry  purporting  to 
be  a  judgment,  entered  merely  by  a  person  employed  by  the 
justice  of  the  peace  to  do  clerical  work,  and  known  as  his  clerk, 
which  judgment  is  not  signed  by  the  justice,  is  not  a  judgment, 
but  a  mere  memorandum."  128/119  (57  S.  E.  229). 

"There  is  no  law  requiring  the  signature  of  a  justice  of  the 
peace  to  a  judgment  entered  by  him  on  his  docket.  A  signature 
by  initials  did  not,  therefore,  avoid  such  judgment."  67/725. 

"An  attorney  at  law  for  a  party  in  whose  favor  a  verdict  is 
rendered  on  the  trial  of  an  appeal  in  a  justice's  court  can  enter 
in  behalf  of  his  client  a  judgment  on  such  verdict  any  time 
within  four  days  after  the  adjournment  of  the  court;  and  if 
such  judgment  conforms  to  the  verdict,  the  justice  has  no  alter- 
native but  to  transcribe  the  same  upon  his  docket."  108/205 
(33  S.  E.  903). 

"The  docket  of  the  justice  of  the  peace,  in  whose  court  a 
judgment  is  rendered,  ought  to  furnish  the  evidence  of  the 
service  of  a  summons  on  the  defendant,  as  required  by  the 
statute;  but  the  next  best  evidence,  is  the  production  of  the 


108  TKIAL  AND  JUDGMENT 

summons,  if  that  can  be  found;  but  if  that  can  not  be  found, 
after  due  search  and  inquiry,  then  parol  evidence  of  proof  of 
service,  is  admissible."  12/425. 

SEC.  265.  OATH  OF  WITNESS  IN  CIVIL  CASES.  "The  follow- 
ing shall  be  the  form  of  oath  administered  to  witnesses  in  civil 
cases:  'You  do  solemnly  swear  (or  affirm)  that  the  evidence 
you  shall  give  the  court,  on  the  issue  pending,  shall  be  the  truth, 
the  whole  truth,  and  nothing  but  the  truth.  So  help  you  God.' ' 
Code,  §6317. 

(NOTE:  Previous  to  the  Convention  of  the  Superior  Court  Judges  in 
1907,  there  was  no  prescribed  oath  for  a  witness  in  a  civil  case.  The 
author  of  this  book  was  a  member  of  that  Convention  and  he  wrote 
and  proposed  the  above  form  of  oath  which  was  adopted.) 

SEC.  266.  SEPARATE  EXAMINATION.  "In  all  cases  either 
party  has  the  right  to  have  the  witnesses  of  the  other  party 
examined  out  of  the  hearing  of  each  other.  The  court  will  take 
proper  care  to  effect  this  object  as  far  as  practicable  and  con- 
venient, but  any  mere  irregularity  shall  not  exclude  the  wit- 
ness." Code,  §5869. 

"When  the  witnesses  have  been  put  under  the  rule  and  one 
of  them  disobeys  the  order  of  the  court  and  remains  in  the  court- 
room while  the  other  witnesses  testify,  he  is  not  thereby  dis- 
qualified as  a  witness.  Civil  Code,  §5280  [5869]  ;  McWhorter 
vs.  State,  119  Ga.  55  (6).  The  fact  that  he  has  heard  the 
evidence,  may  go  to  his  credit  or  subject  him  to  proceedings  for 
contempt,  but  does  not  disqualify  him.  121/358  (49  S.  E. 
290). 

"It  has  repeatedly  been  held  that  it  is  within  the  discretion 
of  the  trial  judge  to  allow  a  witness  to  testify  who  has  violated 
the  rule  for  the  sequestration  of  witnesses."  135/584  (69 
S.  E.  114). 

"Where  witnesses  have  been  put  'under  the  rule,'  at  the  re- 
quest of  counsel,  it  is  not  error  for  the  court  to  receive  testimony 
from  a  witness  who  was  not  sworn  and  sequestered,  but  who 
remained  in  the  court-room  and  heard  the  testimony  of  the  other 
witnesses  and  the  defendant's  statement."  15  App.  713  (84 
S.  E.  159). 

SEC.  267.  WHAT  Is  AN  ACCOUNT.  An  account  is  a  detailed 
statement  of  items  of  debt  and  credit,  or  debt  arising  out  of 
contracts  between  the  parties.  The  wrord  "account"  has  no 
clearly  defined  legal  meaning.  It  includes  goods  sold  and  de- 
livered, or  consigned  to  be  sold,  money  had  and  received,  work 
done,  or  materials  furnished. 


TRIAL  AND  JUDGMENT  109 

SEC.  268.  OPEN  ACCOUNTS.  "All  actions  upon  open  ac- 
counts', or  for  the  breach  of  any  contract  not  under  the  hand  of 
the  party  sought  to  be  charged,  or  upon  any  implied  assumpsit 
or  undertaking,  shall  be  brought  within  four  years  after  the 
right  of  action  accrues."  Code,  §4362. 

SEC.  269.  ACCOUNT  STATED.  An  account  stated  is  an  agree- 
ment between  the  parties  who  have  had  previous  transactions, 
fixing  the  amount  due  in  respect  of  such  transactions  and  prom- 
ising payment  of  balance  due.  103/262  (29  S.  E.  872)  ;  6 
App.  734,  735  (65  S.  E.  788). 

SEC.  270.  MUTUAL  ACCOUNTS.  "In  order  to  make  such  a 
mutual  account  as  will  prevent  the  statute  of  limitations  from 
beginning  to  run  from  the  date  of  the  last  item  thereof,  there 
must  be  an  indebtedness  on  both  sides.  Mere  entries  of  credits 
of  partial  payments  are  not  sufficient."  Code,  §4363. 

"A  mutual  account  is  one  based  on  a  course  of  dealing  wherein 
each  party  has  given  credit  to  the  other  on  the  faith  of  the 
indebtedness  to  him."  74/555. 

Partial  payments  on  a  debt  or  open  account  and  crediting 
the  same  thereon,  does  not  render  the  account  mutual  between 
the  parties.  80/1  (5  S.  E.  290);  95/527  (20  S.  E.  498). 

The  fact  that  there  is  an  indebtedness  on  both  sides  is  not 
sufficient  to  create  a  mutuality  which  will  remove  the  bar  of 
the  statute.  It  must  also  appear  that  the  circumstances  were 
such  that  each  party  relied  on  the  indebtedness  of  the  other  to 
himself  as  a  basis  of  credit,  whereby  neither  account  became 
due  until  the  mutual  dealings  cease.  3  App.  510  (60  S.  E. 
126). 

SEC.  271.  ACCOUNTS,  How  PROVED.  "When  suit  is  brought 
upon  an  open  account  in  a  justice  court,  each  account  may  be 
proved  by  the  written  affidavit  of  the  plaintiff,  and,  when  as 
proved,  shall  be  received  in  evidence  as  if  proved  in  open  court ; 
nevertheless,  if  the  defendant  will  file  his  affidavit  denying  the 
justice  and  fairness  of  the  whole  or  any  part  of  such  account, 
the  court  shall  not  give  judgment  in  favor  of  the  plaintiff  for 
that  part  of  the  account  so  denied  and  controverted,  unless  sup- 
ported by  other  proof.  In  all  cases  when  such  affidavit  to  prove 
the  account  is  made,  there  shall  be  personal  service  upon  the 
defendant  before  judgment  is  given  for  the  plaintiff  under  the 
provisions  of  this  section.  In  all  cases  where  a  counter  affidavit 
is  filed  by  the  defendant,  and  the  plaintiff  is  not  present,  it 
shall  be  the  duty  of  the  justice  of  the  peace  to  continue  such 


110  TRIAL  AND  JUDGMENT 

case  until  the  next  term  of  said  court.  Nothing  in  this  section 
contained  shall  apply  to  suits  against  administrators  and  execu- 
tors on  contracts  of  their  deceased  testators  and  intestates." 
Code,  §4730. 

SEC.  272.  AFFIDAVIT  AND  FORM  OF  ACCOUNT.  In  suits  on 
accounts  in  justice  courts,  the  plaintiff  may  verify  his  account 
by  affidavit.  The  defendant  has  a  right  to  appear  at  the  first 
term  and  file  counter-affidavit  denying  the  account  or  so  much 
of  it  as  he  denies  is  just  and  proper.  This  affidavit  must  be 
filed  at  the  first  term  and  where  it  is  not  filed  and  there  is  per- 
sonal service  upon  the  defendant.  It  has  been  held  as  shown  in 
the  citations  hereinafter  that  where  this  counter-affidavit  is 
filed  at  the  first  term  and  not  sworn  to,  it  may  be  amended  at 
the  next  term  by  verifying  the  counter-affidavit.  Where  there 
is  judgment  rendered  against  the  defendant  without  the  filing 
of  the  counter-affidavit,  in  such  case  the  defendant  has  no  right 
to  appeal  the  case  to  a  jury  in  either  the  justice  court  or  the 
superior  court,  and  in  such  case  his  appeal  would  be  either  dis- 
missed or  he  would  not  be  allowed  to  offer  evidence  to  support 
his  defense.  The  defendant  would  have  a  right  to  file  a  plea 
if  such  plea  denies  the  justice  and  fairness  of  the  account  or 
any  part  of  it  and  this  plea  though  wrould  have  to  be  sworn  to 
and  filed  at  the  first  term.  This  procedure  may  be  illustrated 
by  the  following: 

,  Ga.,  Sept.  1,  1916. 

RICHARD  ROE  TO  JOHN  DOE,  Dr. 
1916 

July     1st,     To  one  suit  of  clothes $25.00 

"       10th,    "     "     hat   5.00 

"       20th,    "    six  shirts    9.00 

"       25th,    "    one  pair  shoes   5.00 


Total    $44.00 

Georgia,   County. 

Personally  came  before  the  undersigned  attesting  officer,  John 
Doe,  who,  being  duly  sworn,  on  oath  says  that  the  above  named 
and  stated  account  is  just  and  true  and  unpaid,  and  that  the 
defendant,  Richard  Roe,  owes  plaintiff,  John  Doe,  the  sum  and 
amount  claimed  therein,  to  wit,  $44.00. 

JOHN  DOE. 
Sworn  to  and  subscribed  before  me,  this 

the day  of.. ,19 

,  J.   P. 


TRIAL  AND  JUDGMENT  111 

As  to  the  form  of  an  account  to  be  attached  to  a  summons  in 
a  justice  court,  attention  is  called  to  the  case  of  Mayer  vs. 
Southern  Express  Company,  17  App.  -744  (88  S.  E.  403),  de- 
cided March  24th,  1916. 

"Since  the  passage  of  the  act  of  1881  (Acts  of  1880-1,  p.  66) 
codified  as  section  4715  of  the  Civil  Code  of  1910,  the  plaintiff 
in  an  action  in  a  justice's  court  must  set  forth  his  cause  of 
action  with  some  degree  of  certainty,  and  then  must  recover 
upon  the  case  as  laid,  and  not  upon  a  different  and  distinct 
ground  of  liability.  The  cause  of  action  in  this  case  was  not 
set  forth  so  definitely  or  with  such  certainty  as  to  fairly  apprise 
the  defendant  of  the  nature  of  the  plaintiff's  demand,  and  thus 
enable  the  defendant  to  properly  prepare  a  defense,  or  confine 
the  plaintiff  to  one  particular  claim. 

"Mayer  brought  suit  in  a  justice's  court  against  the  Southern 
Express  Company.  Attached  to  the  summons  was  the  follow- 
ing statement :  'Southern  Express  Company.  -  —  Bought  of 
Daniel  Mayer,  Sept.  4,  1912,  to  328  #  pork  spoiled  in  transit, 
@  lOc,  $32.80.'  The  defendant  demurred  generally  to  the 
summons,  and  demurred  specially  on  the  grounds  that  it  was 
not  alleged  why  and  in  what  way  the  defendant  was  indebted 
to  the  plaintiff;  that  the  point  from  whence  the  pork  was  shipped 
or  its  destination,  the  time  of  its  arrival  at  destination,  or  the 
time  of  its  delivery  to  the  plaintiff  was  not  alleged;  and  that 
it  was  not  alleged  how  the  pork  sued  for  was  'spoiled,'  or  how 
it  became  spoiled.  The  plaintiff  thereupon  amended  the  state- 
ment attached  to  the  summons,  by  adding  the  following:  'Said 
shipment  of  meat  was  made  by  J.  T.  Stewart  and  was  shipped 
from  Camilla  to  Albany,  Georgia,  and  arrived  on  September  3, 
1913,  and  was  not  delivered  until  September  4,  1913,  about 
eight  o'clock,  A.  M.'  The  defendant  still  insisted  upon  its 
demurrer  after  this  amendment  had  been  allowed,  and  the  jus- 
tice of  the  peace  sustained  the  demurrer  and  dismissed  the 
action.  A.  writ  of  certiorari  was  thereupon  sued  out,  and  upon 
the  hearing  the  judge  of  the  superior  court  overruled  the  cer- 
tiorari." Court  of  Appeals  affirmed  this  judgment. 

SEC.  273.  COUNTER  AFFIDAVIT.  Counter  affidavit  in  such 
case  may  be  as  follows: 


112  TRIAL  AND  JUDGMENT 

•^        Suit     on      account     in      Justice     Court, 
JOHN  DOE  TV  ,  .  ,    ^   -*f 

....................  District.  G.  M., 

vs.  ft 

RICHARD  ROE  ............      ™ 

J  .....................  Term,     19  ... 

Now  comes  Richard  Roe,  the  defendant  in  the  above  named 
and  stated  case,  at  the  first  term,  and  in  answer  to  said  suit  on 
said  account  filed  this  his  counter  affidavit  thereto  and  on  oath 
says:  Defendant  does  not  deny  getting  a  suit  of  clothes  and 
shoes'  which  amount  in  the  aggregate  to  the  sum  of  $30.00  for 
which  defendant  is  indebted  to  plaintiff,  but  defendant  denies 
getting  the  other  items  set  out  in  said  account,  to  wit,  the  shirts 
and  hat  as  therein  set  out  and  charged,  and  he  is  not  indebted 
therefor,  and  for  these  reasons  this  defendant  denies  the  justice 
and  fairness  of  said  account. 

RICHARD  ROE. 
Sworn  to  and  subscribed  before  me,  this 

the  .......  day  of  .........  ,  19  .... 


SEC.  274.  DECISIONS  RELATING  TO  ACCOUNTS.  "Suit  on  an 
unverified  account  may  be  met  by  an  unverified  plea.  But 
where  a  suit  on  an  unverified  account  has  been  personally 
served,  and  the  same  is  met  by  no  defense  whatever,  the  de- 
fendant's silence  is  to  be  treated  as  an  admission  of  the  correct- 
ness of  every  item  in  the  account,  and  the  plaintiff  is  entitled 
to  judgment  on  the  call  of  the  docket  and  without  the  case  being 
assigned  for  trial."  119/777  (47  S.  E.  170). 

"The  plaintiff  having  verified  his  account,  and  the  defend- 
ant's answer  not  being  verified,  it  was  not  error  to  strike  the 
answer  and  enter  judgment  for  the  plaintiff;  the  defendant  not 
offering  to  amend  'by  verifying."  10  App.  278  (73  S.  E.  350). 

"This  was  a  suit  in  a  justice's  court  upon  an  open  account 
verified  by  the  affidavit  of  the  plaintiff.  When  called  for  trial, 
no  counter  affidavit  was  filed,  and  the  case  was  in  default,  and 
judgment  was  rendered  for  the  plaintiff.  Subsequently  the  de- 
fendant appeared  and  filed  a  plea,  and  entered  an  appeal  from 
the  judgment  to  a  jury  in  the  justice's  court.  When  "the  appeal 
was  reached  for  trial  the  justice  struck  the  plea  because  filed 
too  late,  and  dismissed  the  appeal.  On  certiorari  the  justice 
was  sustained.  Held,  no  error.  Civil  Code  (1910),  §4630; 
Odell  v.  Meacham,  114  Ga.  910  (41  S.  E.  41);  Rockmore  v. 
Cullen,  94  Ga.  648  (21  S.  E.  845)."  10  App.  321  (73  S.  E. 
534). 


TRIAL  AND  JUDGMENT  113 

"Where  in  a  suit  in  a  justice's  court,  upon  an  open  account 
which  was  proved  by  the  affidavit  of  the  plaintiff,  the  defend- 
ant's answer  had  not  been  verified  by  affidavit,  the  judge  of  the 
superior  court  properly  held,  upon  certiorari,  that  it  was  error 
for  the  magistrate,  over  the  objection  of  the  plaintiff,  to  allow 
the  defendant  to  introduce  evidence  in  support  of  such  unsworn 
plea.  Civil  Code,  §4130,  [4370]. 

"Inasmuch,  however,  as  such  plea  may  be  amended  by  swear- 
ing to  it  (Barnes  v.  Coker,  112  Ga.  137  (37  S.  E.  104)  ),  it 
was  error  for  the  judge  of  the  superior  court,  upon  certiorari, 
to  enter  up  final  judgment  for  the  plaintiff.  The  case  should 
have  been  remanded  for  retrial  in  the  justice's  court."  122/32 
(49  S.  E.  800). 

"Where  the  plaintiff's  account  is  proved  by  affidavit  as  pro- 
vided in  the  Civil  Code  of  1895,  §4130  [1910,  §4730],  and 
the  defendant  has  filed  a  general  denial  not  sworn  to,  the  case, 
so  far  as  the  defendant  is  concerned,  is  in  default,  and  the 
direction  of  a  verdict  by  the  magistrate  is  harmless  error.  If 
an  offer  to  amend  the  defendant's  plea  by  adding  the  required 
affidavit  had  been  made  before  any  testimony  was  offered,  the 
amendment  should  have  been  allowed,  and  the  right  of  surmort- 
ing  the  defense  by  testimony  would  have  followed,  Coffee  v. 
McCaskey  Register  Co.,  7  App.  425  (66  S.  E.  1032).  But  in 
response  to  a  suit  on  account  verified  by  an  affidavit  as  provided 
by  the  Civil  Code  of  1895,  §4130  [1910,  §4730],  the  defendant 
must  likewise  swear  to  his  answer ;  and  failing  thus  to  answer, 
the  defendant  is  not  entitled  to  introduce  any  evidence,  for  the 
reason  that  he  has  no  plea.".  8  App.  177  (68  S.  E.  871). 

"Under  the  act  of  September  26th,  1883,  when  the  plaintiff 
in  a  suit  upon  an  open  account  in  a  justice's  court  has  duly 
proved  his  account  by  written  affidavit,  the  introduction  of  that 
affidavit  in  evidence  to  the  jury  on  the  trial  of  an  appeal  taken 
by  the  defendant,  is  conclusive  upon  the  right  of  the  plaintiff 
to  recover,  imless  the  defendant  has  filed  his  written  affidavit 
denying  the  justice  and  fairness  of  the  whole  or  some  part  of 
the  account.  An  unsworn  plea  will  not  suffice  as  a  substitute 
for  the  affidavit  required  of  the  defendant  by  the  statute,  nor 
will  a  sworn  plea  unless  the  oath  xthereto  be  in  writing."  94/ 
648  (21  S.  E.  845). 

"The  statute  required  the  defendant's  answer  to  be  verified. 
Civil  Code  (1910),  §4728.  But  the  verification  could  be  added 
by  amendment.  Ward  v.  Frick  Co.,  95  Ga.  804  (22  S.  E. 
899)  ;  Rodgers  v.  Caldwell,  122  Ga.  279  (50  S.  E.  95)  ;  Patton 


114  TRIAL  AND  JUDGMENT 


v.  Bank  of  LaFayette,  124  Ga.  967  (72  S.  E.  247).  Inasmuch 
as  the  original  answer  contained  a  general  denial  of  any  indebt- 
edness to  the  plaintiff,  this  was  enough  to  amend  by."  12  App. 
63  (76  S.  E.  760). 

"A  sued  B  in  a  justice's  court  'in  an  action  of  debt  due  on 
an  account.'  The  evidence  showed  that  B's  liability  was  based 
on  an  agreement  made  with  A  to  pay  for  the  property  repre- 
sented by  the  account,  in  the  event  of  its  destruction  by  fire 
while  A's  house  was  occupied  by  B's  servant.  A  fully  per- 
formed his  part  of  the  contract,  and  nothing  remained  to  be 
done  by  B,  except  to  pay  for  the  property  which  was  destroyed 
by  fire  while  the  house  was  occupied  by  his  servant.  Held,  that 
such  an  action  was  purely  brought  although  there  was  an  express 
contract  between  the  parties  on  the  subject-matter  from  which 
the  debt  arose.  The  contract  in  question  was  evidence  of  the 
debt.  Johnson  v.  Quin,  52  Ga.  485  ;  Hill  v.  Balkcom,  79  Ga. 
444  (5  S.  E.  200)  ;  Tumlin  v.  Bass  Furnace  Co.,  93  Ga.  599 
(20  S.  E.  44)."  1  App.  212  (58  S.  E.  137). 

"A  claim  for  overcharges  in  freight  paid  to  a  common  carrier 
may  be  sued  on  in  a  justice's  court  as  an  open  account,  under 
the  Civil  Code,  §4130  [4730]  ;  and  when,  in  such  a  suit,  the 
account  was  proved  by  the  affidavit  of  the  plaintiff,  and  there 
had  been  personal  service  upon  the  defendant,  and  the  defendant 
had  filed  a  general  denial  not  sworn  to,  it  was  not  error,  011 
motion,  to  strike  such  plea  and  enter  up  judgment  for  the 
plaintiff."  1  App.  662  (57  S.  E.  968). 

"The  justice  of  the  peace  did  not  err  in  dismissing  the  suit. 
The  account  attached  to  the  summons  was  upon  its  face  barred 
by  the  statute  of  limitations;  and  it  \vas  not  verified  by  the 
affidavit  of  the  plaintiff,  so  as  to  require  the  court  to  continue 
the  case  until  the  next  term  of  the  court."  8  App.  223  (68 
S.  E.  951). 

"The  provisions  of  the  Civil  Code,  §4130  [4730],  permitting 
the  verification  of  an  account  by  the  plaintiff,  necessarily  and 
impliedly  include  the  right  to  verify  it  by  any  duly  authorized 
agent  of  the  plaintiff  whose  knowledge  of  the  facts  peculiarly 
qualifies  him  to  make  the  necessary  affidavit.  An  attorney  at 
law  is  such  an  agent  as  can  properly  prove  a  plaintiff's  account, 
if  the  facts  necessary  to  prove  it  rest  in  his  personal  knowledge." 
7  App.  425  (66  S/E.  1032). 

"A  statement  of  an  account  which  contains  or  upon  which  is 
icdorsed  an  acknowledgment  of  indebtedness  is  admissible  either 
as  original  proof  or  in  corroboration  of  other  testimony  showing 


TRIAL  AND  JUDGMENT  115 

the  defendant's  indebtedness.  Proof  of  the  indebtedness  of  a 
municipal  corporation  is  not  necessarily  confined  to  the  contents 
of  its  minutes.  A  creditor  of  a  municipal  corporation  may 
prove  his  debt  by  evidence  other  than  the  minutes  of  the  munici- 
pality, or  even  by  credible  testimony  which  is  in  direct  conflict 
with  the  minutes.  His  right  to  recover  can  not  be  defeated  by 
the  mere  failure  of  the  municipal  corporation  to  keep  correct 
minutes  of  its  proceedings."  6  App.  59  (65  S.  E.  310). 

"Section  4130  [Code  1910,  §4730]  of  the  Civil  Code,  which 
provides  the  mode  of  proof  and  defense  in  a  suit  in  a  justice's 
court  upon  an  open  account,  does  not  apply  to  an  'action  for 
damages  and  loss  or  destruction  of  goods'  by  a  common  carrier, 
although  an  itemized  list  of  the  articles  and  their  values  is 
attached  to  the  summons  and  sworn  to  as  correct."  119  Ga.  21 
(47  S.  E.  712). 

"In  the  absence  of  any  objection  thereto  upon  the  ground  of 
incompetency  or  informality,  the  correctness  of  an  account  due 
to  a  corporation  may  be  verified  by  the  affidavit  of  one  who,  in 
signing  the  affidavit,  purports  to  be  the  bookkeeper  of  the  cor- 
poration." 9  App.  128  (70  S.  E.  602). 

"Where  in  an  action  in  a  justice's  court  upon  a  sworn  account 
there  was  service  upon  the  defendant  by  leaving  a  copy  of  the 
summons  and  account  at  her  most  notorious  place  of  abode,  and 
defendant  did  not  appear  or  plead,  and  judgment  was  rendered 
in  favor  of  the  plaintiff,  such  judgment  is  conclusive  as  against 
an  affidavit  of  illegality  based  upon  the  ground  that  plaintiff 
had  introduced  no  evidence  save  the  verified  account;  and  that 
judgment  could  not  legally  have  been  rendered  by  default,  be- 
cause there  had  been  no  personal  service  upon  the  defendant. 
Greene  v.  Oliphant,  64  Ga.  565."  121/281  (48  S.  E.  917). 

"A  plaintiff  can  not  avail  himself  of  the  privileges  of  the 
rule  by  setting  out,  in  the  form  of  an  account,  a  cause  of  action 
which  in  fact  is  not  a  liability  on  account,  but  of  some  other 
nature.  Caudell  v.  Southern  Ry.  Co.,  119  Ga.  21  (45  S.  E. 
712)  ;  Lowe  Co.  v.  Central  Ry.'  Co.,  123  Ga.  712  (51  S.  E. 
653).  In  suits  upon  unconditional  contracts  in  writing,  where 
the  defendant  does  not  appear  or  plead  at  the  first  term,  the 
magistrate  should  render  judgment  for  the  plaintiff  without 
further  proof  than  the  writing  itself.  In  cases  of  unliquidated 
damages  the  plaintiff  must  introduce  enough  testimony  to  show 
a  prima  facie  right  to  recover,  before  he  is  entitled  to  a  judg- 
ment, although  the  defendant  does  not  appear  or  plead.  Mad- 


116  TRIAL,  AXD  JUDGMENT 

dox  v.  Central  Ry.  Co.,  1  Ga.  App.  46  (4),  (57  S.  E.  1062). 
The  court,  therefore,  erred  in  not  sustaining  the  certiorari."  3 
App.  241  (59  S.  E.  717). 

"This  being  a  suit  in  a  justice's  court,  on  an  account  proved 
by  the  written  affidavit  of  the  plaintiff,  where  the  defendant 
filed  no  counter-affidavit  denying  the  justness  and  fairness  of 
the  account,  or  any  part  thereof,  the  justice  should  have  given 
judgment  in  favor  of  the  plaintiff;  and,  on  certiorari,  a  final 
judgment  should  have  been  entered  by  the  judge  of  the  superior 
court  in  favor  of  the  plaintiff.  Civil  Code  (1910),  §4730." 
12  App.  575  (77  S.  E.  878). 

"The  E.  E.  Lowe  Company  brought  suit  against  the  Central 
of  Georgia  Railway  Company,  in  a  justice's  court,  upon  an 
'account'  for  the  loss  of  a  hay-press  and  for  certain  freight  over- 
charges. A  copy  of  the  statement  of  'account'  was  attached  to 
the  summons  and  verified  by  the  affidavit  of  E.  E.  Lowe.  The 
item  in  reference  to  the  hay-press  was  as  follows: 

"  'Sept.  23,  1903,  1  hay-press  shipped  to  A.  Faber 

Freight  prepaid,  9/16 4.70 

Sharpes,  Fla 29.70.' 

"Annexed  to  the  statement  was  the  following  affidavit: 

"  'Personally  appeared  before  me  E.  E.  Lowe,  president  of 
the  E.  E.  Lowe  Co.,  who  deposes  and  says  the  above  account  is 
correct,  true,  and  unpaid.     This  the  16th  day  of  March,  1904. 
"  <J.  A.  Stauffacher,  K  P.,  Fulton  Co.,  Ga.      E.  E.  Lowe.' 

"On  the  day  of  the  trial  the  plaintiff,  without  offering  evi- 
dence, 'asked  the  court  for  a  judgment,  and  rested  the  case  as 
made  out  by  the  pleadings  in  said  cas'e.'  The  defendant  had 
filed  no  written  defense  under  oath,  and  the  justice  rendered  a 
judgment  as  requested.  The  defendant  objected  to  this  ruling 
of  the  magistrate,  for  the  reason  that  the  affidavit  was  not  suffi- 
cient, as  it  had  no  jurat  and  did  not  recite  that  it  was  sworn 
to  before  any  one  and,  after  the  judgment  was  rendered,  carried 
the  case  to  the  superior  court  by  writ  of  certiorari,  still  com- 
plaining of  the  insufficiency  of  the  affidavit,  and  further  alleging 
that  section  4130  [4730]  of  the  Civil  Code,  which  authorizes  a 
judgment  to  be  taken  in  a  justice's  court  in  a  suit  upon  an  open 
account  supported  by  the  written  affidavit  of  the  plaintiff  with- 
out further  proof,  in  the  absence  of  a  counter-affidavit  by  the 
defendant,  does  not  apply  to  the  present  case.  The  certiorari 
was  sustained  and  the  case  sent  back  to  the  magistrate  for  a 
new  trial.  To  this  ruling  the  plaintiff  excepted. 


APPEALS  117 

"It  is  not  necessary  to  decide  whether  or  not  the  affidavit  was 
valid ;  for,  granting  that  it  was,  the  ruling  of  the  judge  of  the 
superior  court  in  sustaining  the  certiorari  was  still  correct,  for 
the  reason  that  this  was  not  a  suit  upon  an  'open  account'  within 
the  meaning  of  that  term  as  used  in  the  Civil  Code,  §4130 
[4730].  Whether  or  not  a  suit  for  overcharges  on  freight  is  a 
suit  upon  an  'open  account'  within  the  meaning  of  the  statute 
referred  to,  a  claim  for  the  loss  of  a  hay-press  certainly  is  not, 
it  having  been  held  in  the  case  of  Caudell  v.  Southern  Railway 
Co.,  119  Ga.  21,  that  'section  4130  [4730]  of  the  Civil  Code 
does  not  apply  to  an  action  for  damage  and  loss  or 
destruction  of  goods  by  a  common  carrier,  although  an  itemized 
list  of  the  articles  and  their  values  is  attached  to  the  summons 
and  sworn  to  as  correct."  123/712  (51  S.  E.  653). 


CHAPTER  XII 

APPEALS. 

SECTION  275.  APPEALS,  WHEN  AND  How  ENTERED.  "Either 
party  being  dissatisfied  with  the  judgment  of  the  justice  of  the 
peace  or  notary  public,  and  upon  all  confessions  of  judgment, 
provided  the  amount  claimed  in  said  suit  is  over  fifty  dollars, 
may,  as  a  matter  of  right,  enter  an  appeal  from  said  judgment, 
within  four  days  (exclusive  of  Sundays)  after  the  rendition 
of  such  judgment,  under  the  same  rules,  regulations,  restric- 
tions, and  liabilities  as  are  provided  on  the  subject  of  appeals." 
Code,  §4738. 

"Where  a  judgment  was  rendered  in  a  justice's  court  on  the 
4th  day  of  September,  and  the  entry  upon  the  docket  of  that 
court  showed  that  an  appeal  was  entered  on  the  12th  day  of  the 
same  month,  the  appeal  was  prima  facie  too  late;  nor  could  such 
appeal  be  saved  because  the  appeal  bond,  which  was  undated, 
recited  that  it  was  tendered  'within  the  time  prescribed  by  law 
for  entering  appeals;'  nor  because  of  the  fact  that  the  losing 
party  went  into  the  office  of  the  justice  'with  bond  in  proper 
time,'  it  not  appearing  that  the  bond  on  the  occasion  thus  re- 
ferred to  was  left  with  the  magistrate,  or  that  it  was  ever  filed 
with  or  approved  by  him  before  the  entry  above  mentioned  was 
made  upon  his  docket."  102/579  (27  S.  E.  G77). 

SEC.  270.  PLEAS  MUST  BE  IN  WRITING,  WHEN.  "It  shall 
be  the  duty  of  the  defendant  in  cases  appealed  from  the  justice's 


118  APPEALS 

court  to  the  superior  court,  to  reduce  his  defenses  to  writing 
before  the  case  proceeds  to  trial  in  the  superior  court ;  Provided, 
he  relies  upon  any  other  plea  or  defense  than  the  general  issue. 
Nothing  contained  in  this  section  shall  be  construed  to  abridge 
his  right  to  amend  his  pleadings  as  in  other  cases."  Code, 
§4739. 

SEC.  277.  APPEALS  IN  JUSTICE'S  COURTS.  "In  any  civil 
case  in  a  justice's  court,  either  party  dissatisfied  with  the  judg- 
ment of  the  justice  may,  as  a  matter  of  right,  enter  an  appeal 
to  a  jury  in  said  court,  under  the  same  rules  as  now  regulate 
appeals  to  the  superior  court;  Provided,  that  by  consent  of 
parties  such  a  case  may  be  passed  to  appeal,  before  judgment 
of  the  justice,  without  giving  bond  for  the  eventual  condemna- 
tion money."  Code,  §4740. 

"A  trial  before  a  jury  in  a  justice's  court  is  a  proceeding  de 
novo,  and,  although  in  the  previous  trial  the  presiding  justice 
may  have  stricken  a  plea  which  he  erroneously  refused  to  permit 
the  defendant  to  amend,  the  defendant  may  either  offer  to  amend 
the  plea  or  offer  a  new  or  additional  defense  upon  the  same 
terms  and  conditions  as  if  there  had  been  no  previous  trial." 
18  App.  198  (89  S.  E.  183). 

SEC.  278.  APPEALS,  WHEN  ALLOWED.  "In  all  cases  in  a 
justice's  court  where  an  appeal  can  be  entered  to  a  jury  in  the 
superior  court,  it  shall  be  lawful  for  such  appeal  to  be  entered 
to  a  jury  in  either  the  justice  court  or  the  superior  court ;  any 
case  appealed  to  a  jury  in  one  court  shall  not  be  appealed  to  a 
jury  in  the  other  court."  Code,  §4741. 

SEC.  279.  APPEALS  TO  THE  SUPERIOR  COURT.  "Where  the 
sum  claimed  exceeds  fifty  dollars,  the  law  of  appeals  from  the 
justice  court  to  the  superior  court  shall  be  the  same  as  contained 
in  this  Code :  Provided,  that  in  any  case  referred  to  in  this  and 
the  preceding  section,  appeals  in  forma  pauperis  may  take  place 
under  such  regulations  as  now  exist  for  appeals  in  forma  pau- 
peris, and  subject  to  such  law  as  may  be  passed  concerning 
proceedings  in  forma  pauperis."  Code,  §4742. 

SEC.  280.  JURIES,  How  DRAWN.  "All  appeals  shall  be  tried 
before  the  justice  of  the  peace  or  notary  public,  or  both,  and  five 
jurors  drawn  and  empaneled  as  follows:  The  justice  in  each 
district  shall,  once  every  two  years,  make  out  a  list  of  all  persons 
liable  to  serve  as  jurors  in  the  superior  court,  who  may  reside 
in  their  respective  districts,  and  shall  write  their  names  on 
separate  pieces  of  paper  and  deposit  them  in  a  box  marked 


APPEALS  119 

'number  one.'  If  the  list  is,  in  the  discretion  of  the  justice  of 
the  peace  or  notary  public,  as  the  case  may  be,  too  small,  then 
the  justice  of  the  peace,  notary  public,  and  one  of  the  jury  com- 
missioners, and  if  no  notary,  then  the  justice  of  the  peace  and 
two  of  the  jury  commissioners  of  the  county  may  select  from 
the  list  of  taxpayers  of  the  district  such  number  of  the  most 
upright  and  intelligent  men  as  they  may  see  fit  and  proper,  to 
add  to  said  list  of  jurors;  Provided,  however,  that  the  list  when 
so  increased,  shall  not  exceed  one-fourth  of  the  voting  popula- 
tion of  the  district.  Said  justices,  or  one  of  them,  in  public  on 
a  court  day,  in  conjunction  with  a  constable,  shall,  if  any  appeal 
is  pending  or  notice  thereof  given,  draw,  after  shaking  the  box 
well,  nine  names  therefrom,  which  names,  after  being  recorded 
in  a  book,  shall  be  deposited  in  a  box  marked  'number  two.' 
After  all  the  names  are  drawn  from  box  'number  one,'  then  the 
drawing  shall  commence  from  box  'number  two,'  and  so  on 
alternately.  The  jurors  so  drawn  shall  be  summoned  by  the 
constable  of  the  district,  or  other  lawful  officer,  at  least  five  days 
before  the  court  at  which  they  are  called  upon  to  serve ;  and  if 
there  should  be  a  deficiency  of  jurors  at  the  trial,  from  cause 
or  absence,  the  constable,  by  direction  of  the  court,  shall  com- 
plete the  jury  by  talesmen  to  nine,  from  which  the  plaintiff  and 
defendant  shall  have  two  strides  each."  Code,  §4743. 

SEC.  281.  OATH  OF  JURY.  "The  following  oath  shall  be 
administered  to  the  jury,  to  wit:  'You  shall  well  and  truly 
try  the  causes  depending  between  the  parties  at  variance,  and 
true  verdict  give  according  to  equity  and  the  opinion  you  enter- 
tain of  the  evidence  produced  to  you,  to  the  best  of  your  skill 
and  knowledge,  without  favor  or  affection  to  either  of  the  parties, 
provided  the  case  or  cases  submitted  shall  not  be  withdrawn 
from  your  consideration.  So  help  you  God.' '  Code,  §4744. 

SEC.  282.  JURY  DRAWN  IN  VACATION,  WHEN.  "In  all  cases 
where  the  justice  of  the  peace,  at  the  regular  term  of  the  court, 
shall  from  any  cause  fail  to  draw  a  jury,  it  shall  be  lawful  for 
said  justice,  in  conjunction  with  the  constable  or  any  two  free- 
holders, at  any  time  to  draw  a  jury  who  shall  serve  on  being 
summoned  as  aforesaid."  Code,  §4745. 

SEC.  283.  DEFAULTING  JURORS,  How  DEALT  WITH.  "Said 
justices  of  the  peace  shall  have  power  to  impose  fines  and  issue 
executions  against  all  defaulting  jurors  who  refuse  to  obey  the 
summons  without  a  good  legal  excuse.  Said  fine  shall  not  ex- 
ceed five  dollars,  and  shall  be  collected  by  the  constable,  unless 


120  APPEALS 

the  absentee  by  next  court  files  his  excuse  under  oath,  or  makes 
it  in  open  court,  to  be  passed  upon  in  either  case  by  the  justice 
of  the  peace."  Code,  §4746. 

SEC.  284.  COMPENSATION  OF  JURORS.  "The  compensation 
of  jurors  for  services  in  justice  courts  shall  be  as  follows:  For 
each  verdict,  the  jury  making  and  returning  the  same  shall  be 
entitled  to  the  sum  of  one  dollar  and  twenty-five  cents,  to  be 
paid  by  the  party  in  whose  favor  the  verdict  is  rendered,  and 
divided  equally  among  the  jurors,  and  taxed  in  the  bill  of  costs; 
and  said  jurors  shall  not  be  entitled  to  receive  further  compen- 
sation." Code,  §4747. 

SEC.  285.  ATTORNEY  MAY  ENTER  APPEALS.  "An  appeal 
may  be  entered  by  the  plaintiff  or  defendant  in  person,  or  by 
his  attorney  at  law  or  in  fact,  and  if  by  the  latter  he  must  be 
authorized  in  writing,  which  authority  shall  be  filed  in  the  court 
in  which  the  case  is  pending  at  the  time  such  appeal  is  entered ; 
but  if  it  is  shown  to  the  court  that  such  authority  exists,  such 
court  may  allow  a  reasonable  time  to  file  the  same,  or  such 
appeal  will  be  dismissed  and  execution  issue  without  further 
order ;  if  such  authority  is  not  filed  within  the  time  allowed,  the 
ratification  of  an  appeal  unauthorized,  if  made  in  writing,  and 
filed  in  the  clerk's  office  before  the  next  term  of  the  court,  shall 
render,  the  appeal  valid."  Code,  §5002. 

SEC.  286.  APPEALS  BY  PARTNERS,  JOINT  CONTRACTORS  AND 
CORPORATIONS.  "When  several  partners  or  joint  contractors 
sue  or  are  sued  as  such,  any  one  of  said  partners,  or  joint  con- 
tractors may  enter  an  appeal  in  the  name  of  such  firm  or  joint 
contractors,  and  sign  the  name  of  such  firm  or  joint  contractors 
to  the  bond  required  by  law,  which  shall  be  binding  on  the  firm 
and  such  joint  contractors  as  though  they  had  signed  it  them- 
selves; and  in  case  of  corporations  the  appeal  may  be  entered 
by  the  president  or  any  agent  thereof  managing  the  case,  or  by, 
the  attorney  of  record."  Code,  §5005. 

SEC.  287.  APPEAL  FROM  JUDGMENT  ESTABLISIHING  LOST 
PAPERS.  "An  appeal  to  the  superior  court,  being  strictly  statu- 
tory, will  not  lie  from  a  justice's  judgment  establishing  copies 
of  lost  papers,  though  such  papers  are  part  of  a  record  in  a  suit 
involving  a  claim  above  $50 ;  but  certiorari  is  the  proper  rem- 
edy." 13  App.  557  (79  S.  E.  530). 

SEC.  288.  APPEAL  WHEN  CASE  DISMISSED.  "From  a  judg- 
ment of  a  justice's  court  dismissing  a  case  for  want  of  prosecu- 


APPEALS  121 

tion  an  appeal  to  a  jury  does  not  lie.  If  there  is  error  in  the 
judgment,  certiorari  is  the  remedy  to  have  the  case  reinstated." 
8  App.  37  (68  S.  E.  488).  See  103/769  (30  S.  E.  244). 

SEC.  289.  APPEAL  BOND.  "The  magistrate  was  right  in  per- 
mitting the  appeal  bond  to  be  amended.  'An  appeal  bond  and 
all  other  bonds  taken  under  requisition  of  law  in  the  course  of 
a  judicial  proceeding,  may  be  amended.'  Civil  Code  (1910), 
§5707.  Certainly  this  is  true  when  the  appeal  is  entered  in 
good  faith  and  no  harm  is  done  the  opposite  party  by  the  amend- 
ment. Hendrix  v.  Mason,  70  Ga.  523,  527.  In  the  present 
case  the  amendment  simply  added  to  the  caption  the  title  of  the 
case  in  which  the  appeal  was  entered,  and  the  amendment  made 
no  change  of  any  material  part  of  the  bond.  It  is  doubtful  if 
the  amendment  was  necessary,  as  the  caption  of  the  original 
bond,  set  out  in  the  magistrate's  answer,  clearly  designated 
Whelchel,  the  garnishee,  as  the  appellee,  and  this  necessarily 
meant  that  Gittens  was  the  appellant."  12  App.  143  (76  S.  E. 
1051). 

"Suit  on  a  forthcoming  bond  was  brought  in  the  justice's 
court,  in  the  name  of  another  person,  for  the  use  of  the  plaintiffs, 
and  an  appeal  was  thereafter  taken  to  the  superior  court  by  the 
defendants.  The  appeal  bond  was  by  its  terms  payable  to  the 
usees,  and  not  to  the  person  in  whose  name  the  action  was  pro- 
ceeding. No  attempt  was  made  to  amend  the  bond,  and,  on 
motion  of  the  appellee,  the  appeal  was  dismissed. 

"Appeal  bonds  are  amendable  in  any  respect,  where  the 
amendment  does  not  prejudice  the  opposite  party.  Civil  Code, 
§5707 ;  Gittens  vs.  Whelchel,  12  Ga.  App.  141  (76  S.  E.  1051). 
A  replevy  bond  given  on  filing  an  affidavit  of  illegality  is  amend- 
able by  changing  the  obligee  and  the  condition,  to  make  the 
bond  conform  to  statute.  Gelders  vs.  Mathews,  6  Ga.  App.  144 
(64  S.  E.  576).  See  also  Head  vs.  Marietta  Guano  Co.,  124 
Ga.  983  (53  S.  E.  676) ;  Smith  vs.  Powell,  134  Ga.  356  (67 
S.  E.  936). 

"The  nominal  plaintiff  is  entitled  to  the  protection  afforded 
by  an  appeal  bond  for  the  eventual  condemnation  money,  in  the 
event  of  final  judgment  in  his  favor;  and  the  bond,  being  a 
statutory  bond,  should  either  comply  strictly  with  the  statutory 
requirements  or  be  amended  to  meet  such  requirements."  17 
App.  446  (87  S.  E.  709). 

"In  this  case  there  was  an  appeal  by  the  defendant  to  a  jury 
in  a  justice's  court,  and,  the  jury  having  rendered  a  verdict 
against  him,  he  appealed  to  a  jury  in  the  superior  court ;  bond 


122  APPEALS 

being  given  in  both  instances.  On  the  call  of  the  case  in  the 
superior  court,  the  appellant  moved  to  dismiss  his  appeal  to 
that  court  as,  being  unauthorized  by  law,  and,  upon  objection 
interposed  by  the  opposing  party,  the  court  rendered  judgment 
on  the  appeal  bond  in  the  superior  court  for  the  amount  of  the 
debt  and  costs,  reciting  that  the  appeal  had  been  there  abandoned 
upon  the  call  of  the  case  for  trial.  To  this  judgment  the  appel- 
lant excepted.  'The  condemnation  money  for  which  the  surety 
on  appeal  is  liable,  is  that  which  is  recovered  in  the  case  on  the 
appeal  trial.  If,  by  reason  of  injunction,  death,  or  other  cause, 
no  trial  of  the  case  is  or  can  be  had  as  to  the  appellant,  the 
surety  is  not  subject  for  a  breach  of  his  bond.  He  is  liable  only 
upon  a  judgment  rendered  against  the  principal  or  his  repre- 
sentative in  the  case  in  which  the  appeal  was  entered.'  Planters 
Bank  vs.  Hudgins,  84  Ga,  108  (10  S.  E.  501).  No  judgment 
on  the  appeal  bond  should  have  been  entered  against  the  appel- 
lant and  his  surety,  except  for  costs  in  the  appeal  case;  and  to 
include  in  the  judgment  anything  more  was  erroneous."  17 
App.  472  (87  S.  E.  708). 

SEC.  290.    FORMS  OF  APPEAL.     (See  Part  II,  pages  272-274.) 
SEC.  291.     CEKTIOEARI  OR  APPEAL.     The  rules  to  determine 
whether  certiorari  or  appeal  is  the  proper  remedy  are  to  be 
found  in  104/783  (31  S.  E.  25),  and  are  as  follows: 

"When  the  case  is  pending  in  the  justice's  court.  (1)  If  the 
amount  in  controversy  is  fifty  dollars  or  less,  and  only  questions 
of  law  are  involved,  there  may  be  either  an  appeal  to  a  jury  in 
the  justice's  court,  or  a  certiorari  to  the  superior  court.  (2)  If 
the  amount  in  controversy  is  fifty  dollars  or  less,  and  there  is 
a  dispute  about  the  facts,  there  must  be  an  appeal  to  a  jury  in 
the  justice's  court,  before  the  case  can  be  carried  by  certiorari 
to  the  superior  court.  (3)  If  the  amount  in  controversy  ex- 
ceeds fifty  dollars,  and  only  a  question  of  law  is  involved,  and 
the  effect  of  the  ruling  complained  of  is  such  as  not  to  dismiss 
the  case,  the  losing  party  may  select  one  of  three  remedies :  an 
appeal  to  a  jury  in  the  justice's  court,  an  appeal  to  the  superior 
court,  or  certiorari.  (4)  If  only  a  question  of  law  is  involved, 
the  losing  party  may  take  the  case  to  the  superior  court  by 
certiorari,  without  regard  to  the  amount  involved.  (5)  If  at 
the  trial  questions  both  of  law  and  fact  are  raised,  but  the  peti- 
tion for  certiorari  only  complains  of  the  rulings  which  involve 
the  questions  of  law,  thus  waiving  the  right  to  complain  of  the 
rulings  upon  disputed  facts,  certiorari  is  available  as  a  remedy. 


APPEALS  123 

(6)  When  the  effect  of  the  ruling  is  to  dismiss  the  case  or  entire 
proceeding,  the  exclusive  remedy  is  certiorari,  without  regard 
to  the  amount  involved.  (7)  There  may  be  an  appeal  to  a  jury 
in  the  justice's  court  in  all  cases,  without  regard  to  the  amount 
in  controversy,  or  the  questions  involved,  whether  they  be  of 
law  or  fact  or  both,  except  in  cases  where  the  effect  of  the 
magistrate's  ruling  is  to  dismiss  the  case.  (8)  If  the  amount 
involved  exceeds  fifty  dollars,  an  appeal  to  the  superior  court 
may  be  had  in  all  cases,  whether  the  questions  be  of  law  or  fact, 
except  in  cases  where  the  effect  of  the  magistrate's  ruling  is  to 
dismiss  the  case,  thus  leaving  no  case  to  appeal.  (9)  After  a 
verdict  has  been  rendered  on  appeal  in  the  justice's  court,  cer- 
tiorari is  available  in  all  cases  without  reference  to  the  character 
of  the  questions  involved. 

"When  the  case  is  pending  in  the  county  court.  (1)  .If  the 
amount  involved  exceeds  fifty  dollars,  there  may  be  an  appeal 
to  the  superior  court  in  all  cases,  without  regard  to  the  character 
of  the  questions  involved,  except  in  cases  where  the  case  has 
been  dismissed  by  the  county  judge,  thus  leaving  no  case  to 
appeal.  (2)  If  the  amount  in  controversy  exceeds  fifty  dollars, 
and  questions  of  law  only  are  involved,  the  losing  party  may 
either  appeal  or  certiorari,  except  when  the  effect  of  the  ruling 
is  to  dismiss  the  case,  when  the  exclusive  remedy  is  certiorari. 
(3)  If  the  amount  involved  exceeds  fifty  dollars,  and  there  is 
a  dispute  about  the  facts,  appeal  is  the  exclusive  remedy.  (4) 
If  the  amount  involved  does  not  exceed  fifty  dollars,  certiorari 
is  the  exclusive  remedy.  Rules  4,  5  and  6  for  justices'  courts 
are  also  applicable  to  county  courts. 

"To  determine  whether  the  case  involves  a  question  of  law 
or  one  of  fact,  the  following  suggestions  are  offered.  (1)  If 
upon  considering  the  entire  evidence,  whether  it  be  derived  from 
an  agreed  statement  of  facts,  oral  testimony,  documents,  or  other 
source,  it  would  be  proper,  if  the  case  were  on  trial  in  the  supe- 
rior court,  for  the  judge  to  direct  a  verdict,  a  question  of  law 
only  would  be  involved.  (2)  If  upon  a  similar  review  of  the 
entire  evidence  there  should  appear  conflicts  of  evidence,  be- 
tween witness  and  witness,  between  statements  of  the  same  wit- 
ness, between  witness  and  written  statements,  between  different 
clauses  in  a  written  statement,  between  witness  and  documents, 
between  document  and  document,  or  in  any  other  way,  questions 
of  fact  would  be  involved.  In  other  words,  if  the  case  presented 
is  such  that  it  would  be  improper  to  direct  a  verdict,  questions 
of  fact  are  certainly  involved.  (3)  When  the  effect  of  the 


124  APPEALS 

ruling  is  to  dismiss  the  case  or  pending  proceeding,  a  question 
of  law  is  involved.  Rulings  of  this  character  are  such  as  those 
which  sustain  a  demurrer,  dismiss  a  levy  or  claim  in  a  claim 
case,  sustain  a  motion  for  nonsuit,  and  the  like." 

SEC.  292.     DECISIONS  RELATING  TO  APPEALS. 

ABATEMENT — Filing  plea  of  abatement  delayed  until  appeal 
of  case,  too  late.  28/543;  103/649  (30  S.  E.  562)  ;  120/530 
(3),  (48  S.  E.  128). 

AFFIDAVIT — Affidavit  in  forma  pauperis,  when  evidence  af- 
fecting credibility  of  appellant  shown  to  be  property  owner. 
5  App.  102  (62  S.  E.  729).  Administrator  can  not  appeal  from 
judgment  which  bound  him  personally  without  complying  with 
Code,  §5009,  as  to  paying  costs  and  giving  bond.  111/196 
(36  S.  E.  619). 

AMENDMENT— Right  of.  101/814  (29  S.  E.  191)  ;  106/204 
(32  S.  E.  118)  ;  118/514  (45  S.  E.  314).  Amendable  and  new 
security  given,  if  necessary.  63/607;  70/523;  113/924  (39 
S.  E.  404).  Not  amendable  by  giving  new  security,  when. 
107/406  (2),  (33  S.  E.  439).  Amendable  so  as  to  bring  amount 
up  to  legal  requirements,  security  essential  thereto.  115/948 
(42  S.  E.  233).  Amendment  of  suit  on  note,  on  appeal  in 
superior  court,  so  as  to  bring  amount  within  jurisdiction  of 
justice's  court,  allowable,  when.  61/385;  113/942  (39  S.  E. 
311). 

AMOUNT — Claimed  originally,  not  amount  of  judgment,  de- 
termines' right  of  appeal.  9  App.  469  (71  S.  E.  763).  In 
excess  of  $50  appeal  lies  to  superior  court  if  disputed  questions 
of  fact  involved.  91/275  (18  S.  E.  156)  ;  104/776  (31  S.  E. 
25)  ;  108/238  (33  S.  E.  846). 

ANSWER — Defense  made  for  first  time  on  appeal  from  justice 
court  to  superior  court  not  allowed.  59/774 ;  70/502  ;  104/718 
(30  S.  E.  935). 

ATTACHMENT — General  judgment  in  court  below,  without 
dismissal  of  attachment,  not  prevent  judgment  in  rem  on  appeal. 
9  App.  606  (71  S.  E.  948). 

ATTORNEY — Can  not  make  affidavit  in  forma  pauperis  for 
client.  25/262;  48/114;  83/639  (10  S.  E.  278).  Client  must 
make  it  for  himself,  under  80/120  (5  S.  E.  250).  Attorney 
can  not  attest  client's  affidavit.  48/415.  Attorney  may  enter 
appeal  without  written  authority.  119/908  (47  S.  E.  206). 
Attorney  in  fact  must  have  and  file  written  authority.  113/324 


APPEALS  125 

(38  S.  E.  748)  ;  119/908  (47  S.  E.  206).  Transmission  of  the 
appeal  by  appellant's  attorney  to  the  clerk  of  the  superior  court, 
without  authority  of  the  justice  of  the  peace,  illegal  and  dis- 
missal results.  116/814  (43  S.  E.  25). 

BOND — Same  surety  on  appeal  and  attachment  bonds  in  same 
case,  appeal  bond  void,  and  not  amendable  on  hearing  of  appeal. 
7  App.  364  (66  S.  E.  989).  Opportunity  should  be  afforded  to 
make  required  amendment.  9  App.  592  (71  S.  E.  1005).  Bond 
amended  by  correcting  initials  of  appellee,  and  by  inserting 
usee's  name  after  name  of  formal  party.  9  App.  840  (72  S.  E. 
443).  Surety  on  prior  bond  in  same  case  disqualified  to  become 
surety  on  appeal.  9  App.  606  (71  S.  E.  948).  Bond  liberally 
construed ;  substantial  compliance  with  statute  sufficient.  9 
App.  591  (71  S.  E.  1005).  Bond  omitting  the  words  "for 
the  eventual  condemnatipn  money,"  not  sufficient  here.  9  App. 
591  (71  S.  E.  1005).  Approval  of  bond  not  required  by  trial 
justice;  if  not  sufficient  security  can  be  excepted  to.  120/417 
(47  S.  E.  942).  Same  security  on  appeal  bond  as  on  claim 
bond,  appeal  a  nullity.  120/766  (48  S.  E.  354).  Either  party 
to  claim  case  on  levy  of  execution  for  less  than  $50  on  property 
worth  $300,  right  of  appeal  exists.  Surety  on  appeal  can  not 
be  same  as  on  forthcoming  and  damage  bond  in  claim  case. 
118/830  (45  S.  E.  684). 

COEPORATIONS — "Section  5002  of  the  Civil  Code  provides 
that  an  appeal  may  be  entered  by  the  plaintiff  or  defendant  in 
person  or  by  his  attorney  at  law  or  in  fact.  Section  5005  pro- 
vides that,  'in  cases  of  corporations,  the  appeal  may  be  entered 
by  the  president  or  any  agent  thereof  managing  the  case,  or  by 
the  attorney  of  record.'  Counsel  for  the  plaintiff  in  error  relies 
on  King  Hdw.  Co.  v.  Bowden,  113/924,  to  sustain  the  proposi- 
tion that  a  secretary >  and  treasurer  of  a  corporation  is  not,  by 
virtue  of  his  office,  clothed  with  authority  to  sign  an  appeal 
bond  and  enter  an  appeal  in  behalf  of  the  corporation.  It  may 
be  conceded  that  the  decision  relied  on  sustains  the  position 
taken  by  counsel,  and  that  the  appeal  in  the  present  case  could 
not,  on  its  face,  be  said  to  have  been  entered  by  an  authorized 
agent  of  the  defendant.  A  corporation  can,  of  course,  act  only 
through  an  agent,  and  any  officer  authorized  so  to  do  by  the 
corporation  may  enter  an  appeal  on  its  behalf.  If,  therefore, 
a  person  undertakes  to  enter  an  appeal  in  behalf  of  a  corpora- 
tion, it  should  appear  that  he  has  been  clothed  with  authority 
to  act  for  the  corporation  and  bind  it  by  the  appeal  so  entered. 


126  APPEALS 

But  section  5005  of  the  Civil  Code  expressly  provides  that  any 
agent  of  the  corporation  managing  the  case  may  enter  the  ap- 
peal. We  do  not  think  that  it  is  absolutely  essential  that  the 
appeal  itself  should  recite  that  the  person  acting  for  the  corpora- 
tion was  the  agent  managing  the  case."  11  App.  204  (75  S.  E. 
108). 

COSTS — Certificates  as  to  payment  of  costs  not  sent  up,  no 
cause  for  dismissing  appeal.  68/194;  116/817  (43  S.  E.  72)  ; 
120/417  (1),  (47  S.  E.  942).  Provisions  as  to  costs  is  for  the 
benefit  of  officers  of  court,  and  opposite  parties  have  no  concern 
therein.  116/817  (43  S.  E.  72);  120/1001  (48  S.  E.  345). 
Appellee  can  not  have  appeal  dismissed  for  non-payment  of 
costs.  122/32  (49  S.  E.  800).  Justice  may  refuse  to  enter 
appeal  before  payment  of  costs.  116/818  (43  S.  E.  72). 

DAMAGES — For  frivolous  appeals,  provisions  as  to,  not  apply 
in  claim  cases,  but  only  to  cases  in  which  a  money  verdict  has 
been  rendered.  111/505  (36  S.  E.  597). 

DEFENDANTS — Joint  defendants;  judgment  against  one  sus- 
pended by  appeal  from  judgment  as  to  the  other.  5  App.  847 
(64  S.  E'.  114). 

DISMISSAL — Not  affected  by  magistrate's  judgment  in  favor 
of  defendant  for  costs,  where  plaintiff  introduced  testimony  and 
failed  to  prove  case ;  plaintiff  could  appeal  as  matter  of  right. 
7  App.  313  (6  S.  E.  809).  Appeal  dismissed  when  certiorari 
is  remedy.  126/45  (54  S.  E.  821).  Where  justice's  court 
dismisses  for  want  of  sufficient  evidence,  appeal  lies.  114/164 
(39  S.  E.  860).  Where  justice  tries  case  and  dismisses  the 
suit,  plaintiff  may,  nevertheless,  enter  an  appeal  for  the  reason 
that  the  judgment  is  adjudicative  as  to  the  merits  of  the  matter 
in  controversy.  113/115  (38  S.  E.  308). 

DOCKET — On  appeal,  docket  of  justice  may  be  introduced  in 
evidence.  While  Code  provides  for  exemplifications  of  the 
dockets  of  magistrates  to  be  introduced,  yet  does  not  prohibit 
introduction  of  the  original  dockets  themselves.  126/45  (54 
S.  E.  821). 

EXECUTION — From  justice  court  for  less  than  $50  levied  on 
property  worth  more,  either  party  to  claim  case  may  appeal. 
54/663;  117/508  (43  S.  E.  1002).  118/830  (45  S.  E.  684), 

JOINT  DEFENDANTS — One  defendant  not  joining  in  appeal 
can  amend  the  appeal  and  plead  in  the  appeal  court.  69/752 ; 
99/166  (25  S.  E.  398);  106/522  (1),  (32  S.  E.  634). 


CLAIMS  127 

JUDGMENTS — Plea  filed  in  justice's  court  to  suit  on  uncondi- 
tional contract  in  writing,  and  such  plea  stricken  on  appeal, 
verdict  should  be  taken.  125/43  (2),  (53.  S.  E.  767).  Appeal 
suspends,  but  does  not  vacate  judgment.  125/95  (53  S.  E. 
580).  Since  Act  of  1826,  judgment  must  be  entered  on  appeal 
against  principal  and  surety.  108/208  (33  S.  E.  903).  Judg- 
ment appealed  from  need  not  be  set  forth  in  appeal.  9  App. 
841  (72  S.  E.  443).  Judgment  without  jury  on  appeal  in 
superior  court  error,  although  suit  be  on  unconditional  contract 
and  plea  be  stricken.  125/43  (53  S.  E.  767), 

JURISDICTION — Lacking  in  lower  court,  proper  procedure  was 
to  dismiss  appeal,  not  set  aside  judgment.  6  App.  808  (65 
S.  E.  1093).  Of  superior  court  on  appeal,  how  limited;  no 
larger  than  that  of  inferior  judiciary.  120/1081  (48  S.  E. 
437). 

PARTIES — All  brought  up  by  appeal  from  judgment  as  to 
one.  5  App.  847  (64  S.  E.  114).  Appeal  by  partnership  must 
be  in  the  name  of  the  firm.  118/514  (45  S.  E.  314). 

PLEA — Too  late  where  no  defense  at  first  term  of  justice 
court.  6  App.  154  (64  S.  E.  493). 

TIME — Within  the  time  allowed  by  law,  recited  in  bond, 
sufficient.  120/417  (47  S.  E.  942).  Timely  entry  of  appeal 
must  affirmatively  appear.  102/579  (27  S.  E.  677).  Appeal 
too  late,  not  excused  by  habit  of  justice  to  close  his  office  early 
in  the  afternoon.  110/265  (34  S.  E.  279). 


CHAPTER  XIII 
CLAIMS. 

(See  Part  II,  pages  355-360.) 

SECTION  293.  CLAIMS  TO  BE  ON  OATH,  "When  any  sheriff 
or  other  officer  shall  levy  an  execution  or  other  process  on  prop- 
erty claimed  by  a  third  person  not  a  party  to  such  execution, 
such  person,  his  agent  or  attorney  shall  make  oath  to  such  prop- 
erty." Code,  §5157. 

SEC.  294.  Boxr>  AXD  SECURITY  FOR  DAMAGES.  "The  person 
obtaining  such  property,  his  agent,  or  attorney,  shall  give  bond 
to  the  sheriff,  or  such  other  officer  as  the  case  may  be,  with  good 
and  sufficient  security,  in  a  sum  not  larger  than  double  the 


128  CLAIMS 

amount  of  the  execution  levied,  the  amount  of  the  bond  shall 
be  double  the  value  of  the  property  levied  upon,  at  a  reasonable 
valuation  to  be  judged  by  the  levying  officer,  conditioned  to  pay 
the  plaintiff  all  damages  which  the  jury  on  the  trial  of  the  right 
of  property  may  assess  against  him  in  case  it  should  appear  that 
said  claim  was  made  for  the  purpose  of  delay  only."  Code, 
§5158. 

SEC.  295.  SALE  MUST  BE  POSTPONED,  WHEN.  "Affidavit 
and  bond  being  made  and  delivered  as  required  in  the  preceding 
section,  it  shall  be  the  duty  of  the  sheriff,  or  other  levying  officer, 
to  postpone  the  sale  of  said  property  until  otherwise  ordered." 
Code,  §5159. 

SEC.  296.  FORTHCOMING  BOND  MAY  BE  GIVEN,  ETC.  "In 
all  cases  where  a  levy  is  made  upon  property  that  is  claimed  by 
a  third  person,  and  such  persons  shall  desire  the  possession 
thereof,  it  shall  be  the  duty  of  the  sheriff  or  other  levying  officer, 
to  take  bond  with  good  security  for  a  sum  equal  to  double  the 
value  of  the  property  levied  on,  to  be  estimated  by  the  levying 
officer,  for  the  delivery  of  such  property  at  the  time  and  place 
of  sale,  provided  the  property  so  levied  upon  shall  be  found 
subject  to  such  execution;  Provided  that  it  shall  not  be  lawful 
to  require  or  take  a  forthcoming  bond  for  real  estate."  Code, 
§5160. 

SEC.  297.  BONDS  MADE  PAYABLE,  TO  WHOM.  "The  claim 
bond  shall  be  made  payable  to  the  plaintiff  in  execution,  and  the 
forthcoming  bond  shall  be  made  payable  to  the  sheriff."  Code, 
§5161. 

SEC.  298.  BOND  RECOVERABLE  ON  FAILURE.  "Bond  and 
security  4}eing  given  as  provided  for  in  the  previous  section,  it 
shall  be  the  duty  of  the  sheriff  or  other  levying  officer,  to  leave 
such  property  in  the  possession  of  such  claimant;  and  in  case 
the  said  claimant  or  his  security  should  fail  to  deliver  said  prop- 
erty, said  bond  shall  be  made  recoverable  in  any  court  having 
cognizance  of  the  same."  Code,  §5162. 

SEC.  299.  PARTNER  OR  JOINT  OWNER  MAY  CLAIM  FOR  ALL. 
"One  of  several  partners  or  persons  jointly  interested  may 
make  the  affidavit  and  execute  the  bond  in  the  name  of  the  firm 
or  persons  jointly  interested,  who  shall  be  bound  thereby  as 
though  each  individual  had  signed  it  himself."  Code,  §5163. 

SEC.  300.  CLAIMS  MAY  BE  MADE  IN  FORMA  PAUPERIS.  "In 
all  cases  where  the  claimants  are  unable  to  give  bond  and  secu- 
rity as  required  in  this  article,  in  claim  cases,  it  shall  and  may 


CLAIMS  129 

bo  the  privilege  of  such  claimants  to  file,  in  addition  to  the  oath 
required  in  section  5157,  an  affidavit  as  follows:  %  A.  B., 
do  swear  that  I  do  not  interpose  this  claim  for  delay  only ;  that 
I  bona  fide  claim  the  right  and  title  to  the  same;  that  I  am 
advised  and  believe  that  the  claim  will  be  sustained;  and  that 
from  poverty  I  am  unable  to  give  bond  and  security  as  now 
required  by  law.'  And  when  said  affidavit  shall  have  been  made 
and  delivered  to  the  levying  officer,  the  same  shall  suspend  the 
sale  in  the  same  manner  as  if  bond  and  security  had  been  given." 
Code,  §5164. 

SEC.  301.  PROPERTY,  How  DISPOSED  OF.  "If  the  property 
levied  on  be  personal,  and  the  claimant  unable  to  give  a  forth- 
coming bond,  it  shall  be  the  privilege  of  the  plaintiff  in  fi.  fa. 
to  give  such  bond,  and  upon  such  bond  being  given  to  be  ap- 
proved by  the  levying  officer,  it  shall  be  the  duty  of  the  levying 
officer  to  deliver  said  property  to  said  plaintiff;  but  in  no  event 
shall  plaintiff  be  allowed  any  compensation  for  keeping  said 
property."  Code,  §5165. 

SEC.  302.  DISPOSITION  OF  PROPERTY  WHERE  No  BOND  Is 
GIVEN.  "In  the  event  the  claimant  is  unable,  and  the  plaintiff 
neglects  or  refuses  to  give  said  bond  for  the  forthcoming  of  the 
property,  the  claimant  may  apply  to  the  ordinary  and  procure 
an  order  for  the  sale  of  the  same,  and  when  said  order  has  been 
granted,  it  shall  be  the  duty  of  the  levying  officer  to  advertise 
the  time  and  place  of  sale  at  not  less'  than  three  public  places, 
to  be  selected  in  different  parts  of  the  county  in  which  the  sale 
is  to  take  place,  for  fifteen  days  immediately  preceding  the  time 
of  sale ;  and  on  the  day  of  sale,  between  the  hours  of  10  A.  M. 
and  1  P.  M.  said  property  shall  be  sold,  and  the  money  arising 
from  such  sale  shall  remain  in  the  hands  of  the  levying  officer, 
subject  to  the  order  of  court  upon  the  final  hearing  of  the 
claim."  Code,  §5166. 

SEC.  303.  WHERE  CLAIM  TO  BE  RETURNED.  "When  an 
execution  issued  from  the  superior  court  shall  be  levied  upon 
personal  property,  and  claimed  by  a  person  not  a  party  to  such 
execution,  as  provided  in  this  Code,  it  shall  be  the  duty  of  the 
levying  officer  to  return  the  same,  together  with  the  execution, 
to  the  next  term  of  the  court  from  which  said  execution  issued ; 
but  should  such  execution  be  levied  upon  real  property,  and  the 
same  shall  be  claimed  in  the  manner  aforesaid,  it  shall  be  the 
duty  of  the  officer  making  the  levy  to  return  the  same,  together 


130  CLAIMS 

with  the  execution  and  the  claim  to  the  next  term  of  the  supe- 
rior court  of  the  county  in  which  the  land  so  levied  upon  shall 
lie."  Code,  §5167. 

SEC.  304.  TRIED  BY  PETIT  JURY.  "The  court  to  which  a 
claim  shall  be  returned  shall  cause  the  right  of  property  to  be 
decided  on  by  a  jury  at  the  first  term  thereof,  unless  continued 
as  other  cases  at  common  law."  Code,  §5168. 

SEC.  305.  OATH  IN  CLAIM  CASES.  "Every  juror,  on  the 
trial  of  the  claim  of  property  either  real  or  personal,  shall  be 
sworn,  in  addition  to  the  oath  usually  administered,  to  give 
such  damages,  not  less  than  ten  per  cent,  as  may  seem  reason- 
able and  just,  to  the  plaintiff  against  the  claimant,  in  case  it 
shall  be  sufficiently  shown  that  such  claim  was  made  for  delay 
only,  and  such  jury  may  give  a  verdict  in  the  manner  aforesaid, 
by  virtue  whereof  judgment  may  be  entered  up  against  the 
claimant  and  his  security  for  the  damages  so  assessed  by  the 
jury  and  the  costs  of  the  trial  of  the  right  of  property."  Code, 
§5169. 

SEC.  306.  BURDEN  OF  PROOF  ON  PLAINTIFF.  "Upon  the 
trial  of  all  claims  provided  for  in  this  chapter,  the  burden  of 
proof  shall  be  upon  the  plaintiff  in  execution  in  all  cases  where 
the  property  levied  on  is,  at  the  time  of  such  levy,  not  in  the 
possession  of  the  defendant  in  execution."  Code,  §5170. 

SEC.  307.  CLAIM  NOT  TO  BE  WITHDRAWN.  "Whenever  a 
claim  of  property  is  made  in  terms  of  this  Code,  and  returned 
to  the  proper  court  by  the  sheriff  or  other  levying  officer,  the 
claimant  shall  not  be  permitted  to  withdraw  or  discontinue  his 
said  claim  more  than  once,  without  the  consent  of  the  plaintiff 
in  execution,  or  some  person  duly  authorized  to  represent  such 
plaintiff;  but  such  court  shall  proceed  to  the  trial  of  the  claim 
of  such  property,  and  it  shall  be  the  duty  of  the  jury  to  assess 
damages  accordingly."  Code,  §5171. 

SEC.  308.  DAMAGES,  WHERE  CLAIM  is  DISCONTINUED. 
"Whenever  a  claim  may  be  dismissed  for  insufficiency,  or  is 
withdrawn,  plaintiffs  in  execution  shall  have  full  power  to  have 
a  case  made  up  and  submitted  to  the  jury,  charging  that  said 
claim  was  filed  for  the  purpose  of  delay,  and  upon  proof  of  the 
same — defendant  and  claimant  having  the  same  power  to  resist 
the  case  as  in  claim  cases  where  damages  are  claimed — the  jury, 
under  instructions  from  the  court,  may  give  damages  as  in  cases 
where  the  claim  is  not  withdrawn  but  submitted  for  trial  to  the 


CLAIMS  131 

jury;  said  cases  so  submitted  shall  be  tried  at  the  time  of  the 
disposal  of  the  claim  if  the  parties  are  ready,  but  continuances 
shall  be  granted  as  in  other  cases."  Code,  §5172. 

SEC.  309.  No  SECOND  CLAIM  RECEIVED  AFTER  PROPERTY 
FOUND  SUBJECT.  "No  second  claim  shall  be  received  and  re- 
turned to  court  by  any  sheriff  in  any  case  where  a  claim  has 
already  been  filed  by  the  same  claimant  and  a  verdict  had  find- 
ing the  property  subject;  and  no  subsequent  claim  shall  be 
received  from  any  person  who  holds  under  a  conveyance  from 
the  first  claimant,  made  subsequently  to  the  filing  of  the  first 
claim  upon  the  trial  of  which  the  property  has  been  found  sub- 
ject." Code,  §6270. 

SEC.  310.  How  DAMAGES  ARE  TO  BE  ASSESSED.  "Upon 
the  trial  of  claims  to  property  which  may  be  pending  in  the 
superior  court,  when  damages  shall  be  found  by  the  jury,  the 
said  damages  shall  be  assessed  upon  the  whole  amount  then  due 
upon  the  execution,  provided  the  value  of  the  property  in  dis- 
pute exceeds  the  amount  of  the  execution,  and  upon  the  value 
of  the  property  when  the  value  of  the  property  is  less  than  the 
execution  levied."  Code,  §5173. 

SEC.  311.  CLAIMS  AND  ILLEGALITIES  AGAINST  Fi.  FAS.  FROM 
COURT  OF  ORDINARY.  "Whenever  an  execution  issued  from  a 
court  of  ordinary  shall  be  levied  upon  personal  property,  and  a 
claim  to  said  property  or  an  affidavit  of  illegality  be  interposed, 
it  shall  be  the  duty  of  the  sheriff,  or  other  levying  officer,  to 
return  the  same,  together  with  the  execution  and  all  other  papers', 
to  the  next  term  of  the  superior  court  of  the  county  from  which 
the  fi.  fa.  was  issued,  but  if  said  levy  shall  have  been  made  upon 
realty,  then  the  fi.  fa.  with  the  claim  or  illegality  papers,  shall 
by  the  levying  officer  be  returned  to  the  next  term  of  the  superior 
court  of  the  county  where  the  land  lies,  and  the  same  shall  be 
tried  as  is  now  provided  for  the  trial  of  claim  and  illegality 
cases."  Code,  §5174. 

SEC.  312.  ORIGINAL  Fi.  FA.  IN  CLAIM  CASES  MAY  BE 
WITHDRAWN.  "The  plaintiff  in  execution,  in  all  claim  cases', 
shall  have  the  right  to  withdraw  the  original  fi.  fa.  from  the 
files  of  the  court,  by  making  application  therefor,  in  person,  or 
by  attorney,  to  the  clerk  of  the  court,  if  there  be  a  clerk,  or  to 
the  court  if  there  be  no  clerk;  upon  application  being  made, 
such  clerk  or  court  shall  make  a  true  copy  of  such  fi.  fa.  with 
all  entries  thereon,  and  shall  certify  the  same  to  be  true;  which 


132  CLAIMS 

certified  copy  shall  be  filed  with  the  claim  papers  in  lieu  of  the 
original  fi.  fa.  and  an  entry  of  the  filing  made  thereon."  Code, 
§5175. 

SEC.  313.  CLAIMS  AT  EXECUTOR'S  SALE.  "When  an  execu- 
tor, administrator,  guardian  or  other  trustee  shall  advertise  that 
it  is  his  intention  to  apply  for  leave  to  sell  any  real  estate  as 
the  property  of  his  testator,  intestate,  ward,  or  cestui  que  trust, 
or  has  obtained  such  order,  it  may  be  lawful  for  any  person 
claiming  such  real  estate  either  by  himself,  his  agent,  or  attor- 
ney, to  file  in  the  court  of  ordinary  an  affidavit  claiming  said 
property,  a  copy  whereof  shall  be  served  on  such  executor,  ad- 
ministrator, guardian,  or  trustee,  as  the  case  may  be,  previously 
to  the  day  of  sale."  Code,  §5176. 

SEC.  314.  TRIED  IN  COUNTY  WHERE  LAND  LIES.  "Affidavit 
having  been  made  and  filed,  and  notice  having  been  given  as 
required  in  the  preceding  section,  it  shall  be  the  duty  of  such 
ordinary  to  transmit  such  claim  affidavit  to  the  next  term  of 
the  superior  court  of  the  county  where  the  land  lies;  and  the 
right  of  property  shall  be  there  tried  upon  an  issue  made  up  in 
the  same  manner  and  under  the  same  regulations,  restrictions 
and  penalties'  as  are  now  provided  for  the  trial  of  claims  to 
property  levied  on  by  execution."  Code,  §5177. 

SEC.  315.  CLAIMS  TO  PERSONALTY,  WHERE  TRIED.  "When 
any  executor,  administrator,  guardian,  or  other  trustee  shall 
advertise  to  sell  any  personal  property  as  the  property  of  his 
testator,  intestate,  ward,  or  cestui  que  trust,  and  the  same  shall 
be  claimed  on  oath,  and  the  claim  affidavit  shall  have  been  filed 
and  served  as  required  in  the  first  section  of  this  chapter,  it 
shall  be  the  duty  of  the  ordinary  to  transmit  such  claim  affidavit 
to  the  superior  court  next  to  be  held  after  such  claim  is  filed  in 
the  county  where  such  executor,  administrator,  guardian  or 
trustee  resides."  '  Code,  §5178. 

SEC.  316.  CLAIM  POSTPONES  SALE.  "When  a  claim  has 
been  interposed  as  provided  in  the  preceding  sections',  the  sale 
of  the  property  advertised  and  claimed  shall  be  postponed  until 
after  the  termination  of  the  claim  case."  Code,  §5179. 

SEC.  317.  CLAIMS  IN  JUSTICE'S  COURTS,  WHEN  AND  How 
INTERPOSED.  "When  an  execution  rendered  by  a  justice  of 
the  peace,  or  notary  public  who  is  ex-officio  justice  of  the  peace, 
shall  be  levied  upon  personal  property,  which  is  claimed  by  any 


CLAIMS  133 

person  who  is  not  a  party  to  the  ej;ecution,  the  claimant,  his 
agent,  or  attorney  shall  make  oath  that  the  property  levied  on 
is'  the  right  and  property  of  the  claimant,  and  shall  also  give 
bond  and  security  in  double  the  amount  of  the  execution,  which 
bond,  the  levying  officer  is  empowered  to  take,  payable  to -the 
plaintiff  or  assignee  of  the  execution,  as  the -case  may  be,  with 
condition  to  pay  all  costs  and  damages  which  the  said  plaintiff 
or  assignee  may  sustain,  in  case  it  shall  appear  that  such  claim 
was  frivolous  and  intended  for  delay  only;  which  bond,  on 
breach  of  the  conditions  thereof,  shall  be  recoverable  in  any 
court  having  cognizance  of  the  same."  Code,  §4750. 

SEC.  318.  WHEN,  WHERE,  AND  How  TRIED.  "When  the 
claim  affidavit  is  made  and  the  bond  given,  as  directed  in  the 
preceding  section,  the  constable  shall  postpone  the  sale  of  the 
property,  and  return  the  papers  to  the  justice  of  the  peace  or 
notary  public  who  issued  the  execution ;  and  it  shall  be  the  duty 
of  such  justice  or  notary  public  to  cause  an  issue  to  be  made 
up,  and  try  the  right  of  property  according  to  law,  at  the  next 
regular  term  of  the  justice  court  held  by  said  justice  of  the 
peace  or  notary  public,  occurring  after  ten  days  from  the  filing 
of  s'aid  claim."  Code,  §4751. 

SEC.  319.  CONTINUANCE.  "Upon  good  cause  shown  on 
oath,  a  claim  case  may  be  continued  one  time  by  each  party, 
and  no  longer."  Code,  §4752. 

SEC.  320.     PAUPER  AFFIDAVIT. 
Georgia, County. 

I, ,  do  swear  that  I  do  not  interpose 

this  claim  for  delay  only ;  that  I  bona  fide  claim  the  right  and 
title  to  the  property  levied  on;  that  I  am  advised  and  believe 
that  the  said  claim  will  be  sustained,  and  from  poverty  I  am 
unable  to  give  bond  and  security  as  required  by  law. 

,  Claimant. 

Sworn  to  and  subscribed  before  me  this 

,19.... 

,  J-  P. 

SEC.  321.     FORTHCOMING  BOND  OF  CLAIMANT. 
Georgia, County. 

Know  all  men  by  these  presents',  that  we, , 

as  principal,  and ,  as  security,  are  bound 

unto ,  constable  of  said  county,  in  the 

sum  of Dollars,  for  the  payment  of 


134  CLAIMS 

which  we  bind  ourselves,  our  heirs,  executors  and  administra- 
tors, jointly  and  severally,  by  these  presents. 

Signed,  sealed  and  dated,  this  .................  ,  19.  ... 

The  condition  of  the  foregoing  obligation  is  such,  that, 

Whereas,  the  said   ...................  ,  constable,  has  on 

the  ........  day  of  ................  ,  19  .  .  .  .  ,  levied  a  certain 

fi.  fa',  issued  from  the  justice  court  of  the  ...........  district, 

G.  M'.,  of  said  county,  in  favor  of  .........  against  .........  , 

upon  one  gray  mare  mule,  about  six  years  old,  named  "Nell," 
upon  which  the  said  ..............  has  interposed  his  claim. 

Now,  therefore,  should  the  said  ...............  deliver,  or 

cause  to  be  delivered,  to  the  said.  .............  ,  constable  as 

aforesaid,  the  said  gray  mare  mule,  at  the  time  and  place  of 
sale,  provided  said  property  shall,  upon  the  trial  of  the  right 
of  property,  be  found  subject  to  said  fi.  fa.,  then  this  bond  to 
be  void;  otherwise  of  force. 

............................  ,  Principal   (SEAL) 

............................  .  ,  Security   (SEAL) 

Taken  and  approved  this 


...........................  .,  L.  C. 

SEC.  322.     FORTHCOMING  BOND  OF  PLAINTIFF  IN  Fi.  FA. 
Georgia,   ......  .........  County. 

Know  all  men  by  these  presents,  that  we,  ...............  , 

as  principal,  and  .......................  ,  as  security,  are 

held  and  firmly  bound  unto  ....................  ,  constable 

of  said  county,  in  the  sum  of  ..................  Dollars,  for 

the  payment  of  which  we  bind  ourselves,  our  heirs,  executors' 
and  administrators,  jointly,  severally  and  firmly,  by  these  pres 
ents. 

Signed,  sealed  and  dated  this  ..................  ,  19  .... 

The  condition  of  the  foregoing  obligation  is  such  that, 

Whereas,  the  said  ..........  .  .......  ,  constable  as  afore- 

said, having  on  the  ........  day  of  ...............  ,  19  .  .  .  .  , 

by  virtue  of  an  execution  issued  from  the  justice  court  of  the 
.............  District,  G.  M.,  of  said  county,  levied  upon  one 

gray  mare  mule,  about  six  years  old,  named  "Nell,"  as  the 
property  of   .....................  ,  to  which  said  property 

.....................  has   interposed  his  claim,   and  being 

unable  t-o  give  a  forthcoming  bond  for  the  same,  and  the  said 
.........................  ,  the  plaintiff,  having  elected  to 

give  bond  and  receive  possession  of  said  property. 


CLAIMS  135 

Now,  therefore,  should  the  said   ................   deliver 

or  cause  to  be  delivered  said  gray  mare  mule,  above  described, 
at  the  time  and  place  of  sale,  provided  the  said  mule,  upon  the 
trial  of  the  right  of  property,  be  found  subject  to  s'aid  execution, 
and  if  not  found  subject,  then  to  said  ...........  ........  , 

constable  as  aforesaid,  or  his  successor  in  office,  at  the  termina- 
tion of  said  claim  case,  to  be  disposed  of  according  to  law,  then 
this  bond  to  be  void  ;  otherwise  of  full  force. 

............................  ,  Principal   (SEAL) 

.............................  ,  Security   (SEAL) 

Attested  and  approved  this  ........... 


............................  ,  L.  C. 

SEC.  323.     ISSUE  TENDERED. 

And  now  comes   .................  ,  the  within  mentioned 

plaintiff,  by  his  attorney,  and  says  that  the  property  levied  upon 
as  the  property  of  the  defendant,  and  claimed  by  the  claimant, 
is  not  the  property  of  the  claimant  but  is  the  property  of  said 
defendant  and  subject  to  the  execution  in  favor  of  plaintiff 
levied  thereon; 

And  of  this  he  puts  himself  upon  the  country. 

This  .....................  ,  19.... 

.......................  ,  Attorney  for  Plaintiff. 

Rule  14  of  the  Superior  Court  was  repealed  by  the  Conven- 
tion of  Judges  in  1911.  This  rule  provided  that  if  an  issue 
was  not  tendered  by  the  plaintiff  in  fi.  fa.  within  five  minutes, 
that  the  levy  should  be  dismissed.  This  is  no  longer  the  law, 
and  need  not  be  regarded  in  the  trial  of  a  claim  case. 

SEC.  324.     ISSUE  JOINED. 

And  the  claimant  doth  the  like,  and  says  that  the  property 
levied  on  is  not  subject  to  said  execution. 

.......................  ".  .  ,  Claimant's1  Attorney. 

SEC.  325.    VERDICT. 

We,  the  jury,  find  .the  property  subject. 

This  ...............  .........  ,19  ____ 

.......................  ,  Foreman. 

SEC.  326.     JUDGMENT. 

Whereupon,  it  is  considered  and  adjudged  by  the  court  that 
the  fi.  fa.  proceed  against  the  property  levied  upon,  and  that 
the  plaintiff  in  fi.  fa.  and  ...................  .  .,  as  security, 


136  CLAIMS 

have  and  recover  of  the  claimant, , 

the  sum  of dollars  and cents, 

costs.     Judgment  signed  this ,  19 .... 

,  J.  P. 


Plaintiff's  Attorney. 

SEC.  327.     JUDGMENT  FOR  DAMAGES  AND  COST. 

Whereupon,  it  is  considered  and  adjudged  by  the  court  that 
the  plaintiff  in  execution  do  recover  against  the  claimant, 

and ,  as  security, 

the  sum  of  dollars  for  his  damages,  and 

the  sum  of and cents  for  his 

costs,  in  this  behalf  expended.  Judgment  signed  this 

,  19...- 

,  J.  P. 


Plaintiff's  Attorney. 

SEC.  328.  AMENDMENT  OF  CLAIM.  "When  an  execution  is 
levied  upon  mortgaged  property,  and  a  claim  is  interpos'ed,  the 
claimant  can  not,  upon  the  trial  of  the  issue  amend  the  claim 
by  alleging  that  the  mortgagor  is  not  indebted  to  the  mortgagee, 
nor  will  he  be  allowed  to  introduce  testimony  tending  to  show 
it.  Ford  vs.  Fargason,  120  Ga.  606  (48  S.  E.  180)  ;  Wash, 
vs.  Bank,  99  Ga.  592  (27  S.  E.  167).  Consequently,  the  court 
did  not  err  in  overruling  the  amendment  offered."  16  App. 
382  (85  S.  E.  354). 

SEC.  329.  BURDEN  OF  PROOF.  "Upon  the  introduction  of 
an  execution  with  an  entry  of  levy  thereon  showing  that  at  the 
time  of  the  levy,  the  property  was  in  the  possession  of  the  de- 
fendant named  in  the  execution,  the  burden  was'  upon  the  claim- 
ant to  prove  his  title."  16  App.  424  (85  S.  E.  617). 

"Where  a  levy  is  made  upon  property  found  in  the  possession 
of  the  defendant  in  fi.  fa.,  and  a  claim  is  filed  thereto,  the  burden 
of  proof  rests  upon  the  claimant.  Where  property  levied  upon 
and  found  in  the  possession  of  the  defendant  in  fi.  fa.  was  a 
bale  of  cotton,  and  there  was  evidence  from  which  the  jury 
could  find  that  the  title  to  a  part  of  the  cotton  in  the  bale  was 
in  the  defendant  in  fi.  fa.  and  a  part  in  the  claimant,  but  the 
bale  of  cotton  at  the  time  of  the  levy  was  in  the  possession  of 
the  defendant  in  fi.  fa.,  it  was  not  error  for  the  court  to  charge 
the  jury  that  the  burden  was  upon  the  claimant  to  show  what 


CLAIMS  137 

part  was  subject  and  what  part  was  not  subject,  and  that  upon 
his  failure  to  do  so,  it  would  be  the  duty  of  the  jury  to  find  all 
of  the  cotton  subject."  9  App.  496  (71  S.  E.  807). 

"Where  in  a  claim  case  it  appears  that  the  claimant  is  in 
possession  of  the  property  levied  on,  the  burden  of  proof  is  on 
the  plaintiff  in  execution  to  show  either  title  or  possession  in 
the  defendant  in  execution,  since  the  debt  of  the  former  became 
a  lien  on  property  of  the  latter."  107/264  (33  S.  E.  73). 

"In  a  claim  case,  where  the  plaintiff  in  fi.  fa.  proved  that 
the  defendant  in  fi.  fa.  was  in  possession  of  the  property  levied 
upon  and  exercising  ownership  thereof  just  before  the  levy  was 
made,  this  was  sufficient  to  make  out  a  prima  facie  case  and  to 
shift  the  burden  of  proof;  for  the  presumption  is  that  when 
title  is  proved  to  exist,  in  a  certain  person,  it  remains  in  him 
until  the  contrary  is  shown."  8  App.  824  (70  S.  E.  157). 

SEC.  330.  OBJECTION  TO  JURISDICTION.  "Jurisdiction  being 
waived  as  to  person  and  the  subject-matter,  as  between  the 
plaintiff  and  the  defendant,  a  valid  judgment  was  rendered. 
Thereafter  the  defendant  himself  could  make  no  objection  for 
lack  of  jurisdiction,  and  the  claimant  could  not  make  an  attack 
on  the  judgment  except  upon  some  ground  which  could  at  that 
time  be  urged  by  the  defendant.  'A  defendant  who  has  had  his 
day  in  court  can  not  go  behind  the  judgment  for  the  purpose 
of  showing  that  it  ought  never  to  have  been  rendered,  nor  will 
a  claimant  be  allowed  any  such  right.'  Ansley  Co.  vs.  O'Byrne, 
120  Ga.  618,  620  (48  S.  E.  228).  The  judgment  in  this  case 
is  not  void  as  to  the  claimant,  since  no  objection  to  it  was  made 
at  the  time  of  its  rendition.  The  case  of  Suydnam  vs.  Palmer, 
63  Ga.  547-548,  does  not  apply."  16  App.  618  (85  S.  E.  939). 

SEC.  331.  ADMISSION  OF  POSSESSION  BY  CLAIMANTS. 
"After  the  close  of  the  evidence  and  before  the  charge  to  the 
jury,  the  claimants  offered  to  admit  the  possession  of  the  prop- 
erty by  the  defendant  in  fi.  fa.  at  the  time  of  the  levy,  for  the 
sole  purpose  of  obtaining  the  opening  and  concluding  arguments 
before  the  jury.  The  proposed  amendment  amounted  only  to 
an  admission  by  the  claimants  against  their  interest,  arid  there 
was  no  harmful  error  in  refusing  to  allow  the  amendment ;  nor 
did  the  court  err  thereafter  in  declining  to  allow  the  claimants 
to  open  and  conclude  the  argument."  16  App.  699  (86  S.  E. 
46). 

SEC.  332.  RIGHT  OF  PURCHASER  OF  CROPS  FROM  LAND- 
LORD. "  'Although  the  special  lien  of  a  landlord,  for  rent  on 


138  CLAIMS 

crops  made  upon  land  rented  from  him  dates  from  the  maturity 
of  the  crops,  and  is  superior  in  dignity  to  the  lien  of  an  older 
common-law  judgment  against  the  tenant,  yet  where  the  rent  is 
payable  in  money  and  the  tenant  delivers  the  whole  or  a  portion 
of  the  crops  to  the  landlord  in  payment  or  satisfaction  of  the 
rent  debt,  the  landlord  takes  the  same  subject  to  the  lien  of  the 
older  judgment,  and  can  not  resist  the  enforcement  thereof  by 
claiming  the  property,  but  must  assert  the  priority  of  his'  lien 
for  the  rent  by  foreclosing  the  same  and  claiming  the  proceeds 
of  the  sale.'  Duncan  vs.  Clark,  96  Ga.  (22  S.  E.  927)  ;  Light- 
ner  vs.  Brannon,  99  Ga.  606  (27  S.  E.  703)  ;  Hall  vs.  Mc- 
Gaughey,  114  Ga.  405  (40  S.  E.  246).  One  who  subsequently 
purchases  such  crops  from  a  landlord  who  has  bought  them  from 
his1  tenant  under  such  circumstances  as  above  stated  is  in  no 
better  position  to  maintain  a  claim  to  the  property  than  the 
landlord  himself."  17  App.  46  (86  S.  E.  94). 

SEC.  333.  NON-APPEARANCE  OF  CLAIMANT.  "The  proper 
practice  in  a  claim  -case,  where  the  claimant  fails  to  put  in  an 
appearance,  is  either  to  dismiss  the  claim,  or  to  have  the  plaintiff 
make  out  his  case  and  take  a  verdict  finding  the  property  sub- 
ject to  the  execution ;  and  where  the  entry  of  levy  on  the  execu- 
tion recites  that  at  the  time  of  the  levy,  the  property  levied  upon 
was  in  the  possession  of  the  defendant  in  execution,  this'  would 
make  out  a  prima  facie  case  in  behalf  of  the  plaintiff  in  fi.  fa., 
and  would  cast  the  burden  upon  the  claimant,  and,  in  the  absence 
of  the  claimant,  would  entitle  the  plaintiff  in  fi.  fa.  to  a  verdict 
finding  the  property  levied  upon  subject."  10  App.  320  (73 
S.  E.  597). 

SEC.  334.  PRIMA  FACIE  CASE.  "In  a  claim  case  where  the 
plaintiff  in  fi.  fa.  seeks  to  make,  out  a  prima  facie  case  by  show- 
ing possession  in  the  defendant,  it  is  incumbent  on  him  to  show 
such  possession  at  the  time  of  the  rendition  of  the  judgment,  or 
at  the  time  of  the  making  of  the  levy,  or  at  some  time  interme- 
diate between  the  judgment  and  the  levy. 

"In  such  a  case  where  the  levying  officer  amended  his  entry 
of  levy  by  adding  thereto,  after  the  words  'defendant  in  fi.  fa.' 
the  words  'being  in  possession  of  the  property  levied  upon' ; 
and  where  the  plaintiff  in  fi.  fa.  on  the  trial  introduced  also  the 
testimony  of  witnesses  which,  as  it  appears  in  the  record,  is 
somewhat  ambiguous  and  renders  it  uncertain  whether  the  de- 
fendant was  in  possession  either  at  the  time  of  the  rendition  of 
the  judgment,  Or  at  the  time  of  the  making  of  the  levy,  or 


CLAIMS  139 

between  those  dates,  the  presiding  judge  correctly  refused  to 
dismiss  the  levy,  but  erred  in  directing  a  verdict  in  favor  of  the 
plaintiff.  He  should  have  submitted  the  case  to  the  jury  to  de- 
termine what  was  the  fact  in  regard  to  such  possession."  134/ 
477  (68  S.  E.  69), 

SEC.  335.  HOMESTEAD  PEOPERTY.  "The  setting  apart  of  a 
homestead  does  not  divest  the  head  of  the  family  of  the  legal 
title  to  the  property.  It  only  appropriates  the  property  to  a 
particular  use,  for  the  benefit  of  certain  beneficiaries,  and  dur- 
ing a  specified  time.  Where  property  which  has  been  set  apart 
and  exempted  is  subjected  to  a  levy,  a  claim  may  be  interposed 
by  the  head  of  a  family  in  his'  own  name.  It  is  not  necessary 
that  the  claimant  denominate  himself  as  trustee  or  head  of  the 
family,  if  it  appears  from  the  allegations  of  the  claimant's  affi- 
davit that  the  property  levied  upon  has  in  fact  been  exempted 
and  set  apart  for  use  as  homestead  property.  'In  the  nature  of 
things,  the  head  of  a  family  must  represent  the  interests  of  the 
beneficiaries  in  all  actions'  where  the  title  to  the  exempted  prop- 
erty is  involved,  and  it  makes  no  difference  whether  he  be 
described  as  the  head  of  a  family,  or  as  trustee,  or  as  agent,  or 
simply  designated  by  his  own  name.'  "  9  App.  1  (70  S.  E. 
349). 

SEC.  336.  PAYMENT  OF  EXECUTION.  "This  was  a  claim  case 
in  a  justice  court.  The  levy  was  dismissed  upon  the  ground  that 
the  execution  had  been  fully  paid  off,  there  being  entries  of 
levies  which  were  sufficient  in  amount  to  discharge  the  execution 
in  full.  The  execution  did  show  a  number  of  entries  of  levies 
upon  personal  property,  which  were  unexplained.  No  evidence 
at  all  was  introduced  at  the  trial  to  show  the  value  of  the  prop- 
erty embraced  in  these  levies.  This  was  absolutely  essential  to 
the  determination  of  the  question  as  to  whether  the  levies  un- 
explained were  sufficient  to  raise  a  presumption  of  payment; 
and  for  this  reason,  the  justice  of  the  peace  erred  in  dismissing 
the  levy,  and  the  certiorari  should  have  been  sustained."  127/ 
203  (56  S.  E.  300). 

SEC.  337.  OPENING  AND  CONCLUDING  ARGUMENT.  "In  a 
claim  case,  where  the  claimant  admits  a  prima  facie  case  for  the 
plaintiff  in  fi.  fa.,  and  assumes  the  burden  of  proof,  he  is  entitled 
to  open  and  conclude  the  argument  before  the  jury,  although 
the  plaintiff  in  fi.  fa.  may  not  have  introduced  any  evidence." 
127/338  (56  S.  E.  434). 


140  ILLEGALITIES 

SEC.  338.  GROUNDS  OF  ATTACK  oisr  EXECUTION.  "In  a  claim 
case,  the  claimant  may  attack  the  execution  on  any  ground  which 
could  then  be  urged  by  the  defendant  in  fi.  fa."  120/618  (48 
S.  E.  228). 


CHAPTER  XIV 
ILLEGALITIES. 

(Forms  are  set  out  in  Part  II,  pages  461-465.) 

SECTION  339.  ILLEGALITY  IN  JUSTICES'  COURTS.  "When 
an  issue  is  made  by  an  affidavit  of  illegality  and  returned  to  any 
justice  court,  it  shall  be  tried  at  the  next  term  of  said  court  after 
said  illegality  has  been  returned  to  said  court  for  five  days." 
Code,  $4756. 

SEC.  340.  ILLEGALITY,  How  TAKEN.  "When  an  execution 
against  the  property  of  any  person  shall  issue  illegally,  or  shall 
be  proceeding  illegally,  and  such  execution  shall  be  levied  on 
property,  such  person  may  make  oath  in  writing,  and  shall  state 
the  cause  of  such  illegality,  and  deliver  the  same  to  the  sheriff, 
or  other  executing  officer,  as  the  case  may  be,  together  with  bond 
and  good  security  for  the  forthcoming  of  such  property,  as  pro- 
vided by  this  Code."  Code,  §5305. 

SEC.  341.  No  ILLEGALITY  UNTIL  AFTER  LEVY.  "E"o  affi- 
davit of  illegality  shall  be  received  by  any  sheriff,  or  other 
executing  officer,  until  a  levy  has  been  made."  Code,  §5306. 

SEC.  342.  ILLEGALITY,  How  RETURNED  AND  TRIED.  "When 
the  levy  shall  have  been  made,  and  affidavit  and  bond  delivered 
to  the  officer  as  herein  provided,  it  shall  be  the  duty  of  siich 
officer  to  suspend  further  proceedings  on  such  execution,  and 
return  the  execution,  affidavit,  and  bond  to  the  next  term  of  the 
court  from  which  the  execution  issued ;  and  it  shall  be  the  duty 
of  said  court  to  determine  thereon  at  the  first  term  thereof, 
unless  the  plaintiff  or  his  attorney  desire  to  controvert  the  facts 
contained  in  said  affidavit,  in  which  case  an  issue  shall  be  joined, 
which  issue  shall  be  tried  by  a  jury  at  the  same  term,  unless 
good  cause  is  shown  for  a  continuance."  Code,  §5307. 

SEC.  343.  DAMAGES  FOR  DELAY  ONLY.  "Upon  the  trial  of 
an  issue  formed  on  an  affidavit  of  illegality  filed  in  the  superior 
courts,  the  jury  trying  the  case  shall  have  power  to  assess  such 
damages,  not  exceeding  twenty-five  per  cent,  as  may  seem  reason- 


ILLEGALITIES  141 

able  and  just,  upon  the  principal  debt,  provided  it  shall  be  made 
to  appear  that  such  illegality  was  interposed  for  delay  only.  And 
whenever  an  illegality  may  be  dismissed  for  insufficiency  or 
informality,  or  is  withdrawn,  plaintiffs  in  execution  shall  have 
full  power  to  proceed,  as  is  provided  in  this  Code  in  cases  where 
claims  may  be  dismissed  or  withdrawn."  Code,  §5308. 

SEC.  344.  PEOPEKTY  MAY  BE  SOLD  UNDER  OTHER  EXECU- 
TIONS. "When  an  execution  has  been  levied  on  property,  and 
an  affidavit  of  illegality  filed  to  stay  proceedings  thereon,  the 
property  so  levied  on  shall  be  subject  to  levy  and  sale  under 
other  execution,  and  the  officer  making  the  first  levy  shall  claim, 
receive,  hold,  and  retain  such  amount  of  the  proceeds  of  the  sale 
as  the  court  shall  deem  sufficient  to  pay  the  execution  first  levied, 
including  interest  up  to  the  time  of  the  court  at  which  said 
illegality  shall  be  determined ;  and  any  bond  given  by  the  de- 
fendant on  filing  such  affidavit  shall  be  released  and  discharged 
so  far  as  relates  to  the  property  sold."  Code,  §5309. 

SEC.  345.  WHO  MAY  FILE  ILLEGALITY.  "An  affidavit  of 
illegality  may  be  filed  by  an  attorney  in  fact,  or  an  executor, 
administrator,  or  other  trustee."  Code,  §5310. 

SEC.  346.  WTHEN  ILLEGALITY  CAN  NOT  Go  BEHIND  JUDG- 
MENT. "If  the  defendant  has1  not  been  served,  and  does  not 
appear,  he  may  take  advantage  of  the  defect  by  affidavit  of 
illegality;  but  if  he  has  had  his  day  in  court,  he  can  not  go 
behind  the  judgment  by  an  affidavit  of  illegality."  Code,  §5311. 

SEC.  347.  BURDEN  OF  PROOF.  "On  the  trial  of  an  affidavit 
of  illegality,  the  burden  is  on  the  plaintiff  in  fi.  fa.  to  make  a 
prima  facie'  case  by  putting  in  evidence  an  execution,  fair  on 
its  face,  and  a  legal  levy  thereon.  When  this  is  done,  the  burden 
is  shifted  from  the  plaintiff  to  the  defendant  to  support  his  alle- 
gation of  the  illegality  of  the  execution  or  levy,  but  in  such  a 
case  the  plaintiff  still  retains  the  right  to  open  and  conclude  the 
argument.  Civil  Code,  §6271 ;  Bertody  vs.  Ison,  69  Ga.  317." 
17  App.  578  (87  S.  E.  842). 

S-EC.  348.  AMENDMENT  OF  AFFIDAVIT  OF  ILLEGALITY.  "The 
proffered  amendment  to  the  affidavit  of  illegality  was  fatally 
defective,  first,  because,  in  the  affidavit  supporting  it,  the  affiant 
failed  to  swear  that  he  did  not  know  of  the  existence  of  this 
ground  when  the  original  affidavit  of  illegality  was  made;  and 
further,  the  ground  is  itself  without  merit,  because  the  affidavit 
seeks  to  go  behind  the  judgment,  and,  while  attempting  to  show 
no  record  of  service,  does  not  allege  that  the  defendant  company 


142  ILLEGALITIES 

* 

had  not  in  fact  been  served  with  process  or  had  not  had  its  day 
ill  court.  Civil  Code,  §5311 ;  Bird  vs.  Burgsteiner,  108  Ga.  654 
(34  S.  E.  183)  ;  Cobb  vs.  Pittman,  49  Ga.  579.  The  justice  of 
the  peace,  therefore,  properly  refused  to  allow  the  amendment 
and  correctly  dismissed  the  illegality  on  demurrer ;  and  the  judge 
of  the  superior  court  did  not  err  in  refusing  to  sanction  the  cer- 
tiorari."  17  App.  756  (88  S.  E.  413). 

SEO.  349.  EXCESSIVE  LEVY  AS  GROUND  FOR  ILLEGALITY. 
"An  excessive  levy  is  no  ground  for  illegality.  Manry  vs. 
Shepperd,  57  Ga.  68  (7)  ;  Pinkston  vs.  Harrell,  106  Ga,  102, 
106  (2),  (31  S.  E.  808,  71  Am.  St.  R.  242). 

"Nor  would  the  fact  that  the  advertisement  was  irregular  be 
a  sufficient  ground  for  a  stay  of  the  execution,  but  the  remedy 
of  the  defendant  in  execution  would  be  against  the  officer.  Jef- 
fries vs.  Bartlett,  75  Ga.  230  (3a)  ;  Treadwell  vs.  Beauchamp, 
82  Ga.  736  (9  S.  E.  1040)."  17  App.  786  (88  S.  E.  701). 

SEC.  350.  FORTHCOMING  BOND;  HOMESTEAD.  "No  forth- 
coming bond  is  required  upon  the  filing  of  an  affidavit  of  ille- 
gality interposed  to  a  levy  on  realty.  The  provisions  of  section 
5305  of  the  Civil  Code  apply  to  levies  upon  personalty  only. 
This  section  of  the  code  and  section  6040  should  be  construed 
together. 

"A  defendant  can  not,  by  affidavit  of  illegality,  attack  a  judg- 
ment for  any  cause  that  he  could  have  s'et  up  as  a  defense  in  the 
original  suit.  Civil  Code,  §5311;  Butler  vs.  Hall,  7  Ga.  App. 
777  (68  S.  E.  331).  In  this  case,  the  alleged  lack  of  service  upon 
a  co-defendant  should  have  been  pleaded  in  the  original  suit, 
and  was  not  a  sufficient  ground  for  an  affidavit  of  illegality. 

"Where  the  affidavit  of  illegality  alleges  that  the  judgment 
debt  has  been  discharged  in  a  court  of  bankruptcy,  it  is  error 
to  dismiss  the  affidavit  because  of  failure  to  set  forth  or  attach 
a  copy  or  an  abstract  of  the  record  of  the  proceedings,  in  that 
court.  It  is  not  necessary  that  the  affidavit  shall  contain  -this, 
but  it  should  be  submitted  as  evidence  upon  the  trial. 

"A  homestead  exemption  set  apart  by  a  court  of  bankruptcy 
is  no  more  subject  to  be  levied  on  than  if  it  had  been  s'et  apart 
by  the  ordinary  of  the  county.  Ross  vs.  Worsham,  65  Ga.  624 ; 
Evans  vs.  Rounsaville,  115  Ga.  684  (42  S.  E.  100). 

"Where  a  homestead  is  being  levied  on,  and  the  fi.  fa.  fails 
to  show  upon  its  face  a  lien  superior  to  the  homestead,  and 


GARNISHMENTS  143 

where  the  plaintiff  in  fi.  fa.  has  not  filed  the  affidavit  required 
by  section  3400  of  the  Civil  Code,  the  levy  is  proceeding  ille- 
gally." 16  App.  472  (85  S.  E.  791). 

SEC/  351.  SECOND  AFFIDAVIT.  "A  second  affidavit  of  ille- 
gality is  not  maintainable  if  based  on  the  same  facts  that  the 
first  affidavit  was  based  upon.  The  fact  that  the  first  affidavit 
was  dismissed,  without  a  trial  of  the  issues  raised  or  attempted 
to  be  raised  by  it,  does  not  make  an  exception  to  the  rule."  15 
App.  680  (84  S.  E.  175). 


CHAPTER  XV 

GARNISHMENTS. 
(See  Part  II,  pages  475-483.) 

SECTION  352.  WHAT  Is  A  GARNISHMENT.  A  garnishment 
is  a  proceeding  whereby  a  creditor  who  has  a  judgment  or  a 
suit  pending  against  his  debtor  can  have  applied  to  his  debt  any 
amount  owed  by  a  third  person  to  his' -debtor  or  any  property  or 
effects  in  the  hands  of  a  third  person  so  applied.  It  is  really  a 
suit  by  the  creditor  in  the  name  of  the  defendant  against  a 
third  person  to  apply  any  debt  owed  the  debtor  or  any  property 
or  effects  of  his  to  the  satisfaction  of  the  creditor's  claim.  In 
such  garnishment  proceeding,  the  creditor  occupies'  the  place  of 
his  debtor  and  stands  in  his  shoes  so  far  as  any  recovery  can  be 
had.  The  person  garnisheed  can  set  up  any  claim  he  has  against 
the  debtor  whom  he  owes  and  take  it  off  of  the  amount  that  he 
owes1  the  debtor.  In  making  his  answer,  the  question  is  as  to 
what  he  owes  the  debtor  or  what  property  or  effects  he  had  in 
his  hands  at  the  time  of  the  service  of  the  summons  of  garnish- 
ment or  what  he  has  become  indebted  to  him  up  to  the  making 
of  the  answer  or  what  property  or  effects  he  had  in  his  hands 
at  the  time  of  the  service  of  the  summons  of  garnishment  or 
what  property  and  effects  has  come  into  his  hands  up  to  the  time 
of  making  his  answer. 

SEC.  353.  REGULATIONS.  "In  cases  where  suit  is  pending, 
or  where  judgment  has  been  obtained,  the  plaintiff  shall  be 
entitled  to  the  process1  of  garnishmeiit  under  the  following  regu- 
lations." Code,  §5265. 


144  GARNISHMENTS 

SEC.  354.  AFFIDAVIT  BY  AGENT  OB  ATTORNEY.  "When  the 
affidavit  is  made  by  the  agent  or  attorney  at  law  of  the  plaintiff, 
he  may  swear  according  to  the  best  of  his  knowledge  and  belief, 
and  shall  have  power  to  sign  the  name  of  the  plaintiff  to  the 
bond,  who  shall  be  bound  thereby  in  the  same  manner  as  though 
he  had  signed  it  himself."  Code,  §5266. 

SEC.  355.  AFFIDAVIT  AND  BOND  BY  ONE  OF  A  FIRM,  ETC. 
"When  the  debt  for  the  recovery  of  which  the  garnishment  is 
sought  is1  due  to  copartners,  or  several  persons  jointly,  any  one 
of  said  copartners  or  joint  creditors  may  make  the  affidavit  and 
give  the  bond  in  the  name  of  the  plaintiff,  as  prescribed  in  cases 
of  attachment."  Code,  §5267. 

SEC.  356.  GARNISHMENT,  How  OBTAINED.  "The  plaintiff, 
his  agent,  or  attorney  at  law  shall  make  affidavit  before  some 
officer  authorized  to  issue  an  attachment  by  this  Code,  stating 
the  amount  claimed  to  be  due  in  such  action,  or  on  such  judg- 
ment, and  that  he  has  reason  to  apprehend  the  loss  of  the  same 
or  some  part  thereof  unless  process  of  garnishment  do  issue, 
and  shall  give  bond,  with  good  security,  in  a  sum  at  least  equal 
to  double  the  amount  sworn  to  be  due,  payable  to  the  defendant 
in  the  suit  or  judgment,  as  the  case  may  be,  conditioned  to  pay 
said  defendant  all  costs  and  damages  that  he  may  sustain  in 
consequence  of  suing  out  said  garnishment,  in  the  event  that  the 
plaintiff  fails  to  recover  in  the  suit,  or  it  should  appear  that  the 
amount  swrorn  to  be  due  on  such  judgment  was  not  due,  or  that 
the  property  or  money  sought  to  be  garnished  was  not  subject 
to  process  of  garnishment."  Code,  §5268. 

SEC.  357.  How  AND  BY  WHOM  ISSUED,  ETC.  "When  such 
affidavit  has  been  made  and  bond  given,  it  shall  be  the  duty  of 
the  officer  before  whom  the  same  is  made,  or  any  other  officer 
authorized  by  this  Code  to  issue  attachments,  to  whom  the  same 
bond  and  affidavit  may  be  delivered,  upon  the  request  of  the 
plaintiff,  his  agent,  or  attorney  at  law,  to  issue  a  summons  of 
garnishment,  directed  to  the  person  sought  to  be  garnished, 
requiring  him  to  appear  at  the  next  term  of  the  court  where 
such  suit  is  pending,  or  where  such  judgment  was  obtained; 
but  if  the  next  superior  court  shall  be  held  within  less  than  ten 
days  from  the  time  such  summons  shall  issue,  then  the  garnishee 
shall  be  required  to  appear  at' the  next  court  thereafter,  then 
and  there  to  depose  on  oath  what  he  is  indebted  to,  or  what 
property  and  effects  he  has  in  his  hands~  belonging  to,  the  de- 
fendant, or  had  at  the  time  of  the  service  of  the  summons  of 


GARNISHMENTS  145 

garnishment;  and  also  what  he  has  become  indebted  to  the 
defendant,  or  what  property  and  effects  he  has  received  or  got 
possession  of  belonging  to  the  defendant,  between  the  time  of 
the  service  of  said  summons  and  the  time  of  making  his  return ; 
and  upon  such  affidavit,  bond,  and  summons  of  garnishment 
being  delivered  to  any  officer  authorized  by  law  to  levy  an  attach- 
ment, it  shall  be  his  duty  to  serve  such  summons  of  garnishment 
upon  the  person  to  whom  it  is  directed,  if  to  be  found  in  his 
county,  and  to  make  an  entry  of  such  service,  and  of  his  actings 
and  doings  in  the  premises,  nppn  the  affidavit  and  bond,  and 
return  the  same  to  the  court  to  which  the  person  summoned  as 
garnisliee  is  required  to  appear;  and  all  subsequent  proceedings 
shall  be  the  same  as  in  this  Code  prescribed  in  relation  to  gar- 
nishment in  cases  of  attachment.  Summons  of  garnishment  may 
issue  under  the  provisions  of  this'  section,  from  time  to  time, 
before  trial,  without  giving  additional  bond."  Code,  §5269. 

SEC.  358.  GARNISHMENT  UPON  CORPORATION,  How  SERVED. 
"Service  of  a  summons  of  garnishment  upon  the  agent  in  charge 
of  the  office  or  business  of  the  corporation  in  the  county  or  dis- 
trict at  the  time  of  service  shall  be  sufficient."  Code,  §5270. 

SEC.  359.  GARNISHEE'S  ANSWER  MUST  INCLUDE  WHAT. 
"In  all  cases  of  garnishment,  whether  the  same  be  by  attachment 
'  or  by  garnishment  at  common  law,  it  shall  be  the  duty  of  the 
garnish ee  to  answer  what  property,  money,  or  effects  of  the 
defendant  he  had  in  his  hands  at  the  date  of  the  service  of  the 
summons  of  garnishment,  and  also  wrhat  property,  money,  or 
effects  of  the  defendant  may  have  come  into  his  or  her  hands'  at 
any  time  from  the  date  of  said  service  to  the  date  of  the  answer ; 
and  said  garni shee  shall  also  answer  what  he  or  she  owes  the 
defendant  at  the  date  of  the  service,  and  also  Avhat  he  or  she 
may  have  become  indebted  to  the  defendant  at  any  time  between 
the  date  of  the  service  of  the  summons  and  the  answer  thereto." 
Code,  §5271. 

SEC.  360.  WHAT  Is  SUBJECT  TO  GARNISHMENT.  "All  debts 
owing  to  the  defendant,  and  all  property,  money,  or  effects  of 
the  defendant  coming  into  the  hands  of  the  garnishee  at  or 
within  the  times  designated  in  the  preceding  section,  shall  be 
subject  to  process  of  garnishment,  whether  the  garnishee  had 
anything  in  his  hands  or  was'  indebted  anything  to  the  defendant 
at  the  date  of  the  service  of  the  summons  or  not."  Code,  §5272. 

SEC.  361.  INDKBTKDXESS  ACCRUING  AFTER  SERVICE  OF  SIM- 
MONS. "Whenever  a  summons  of  garnishment  is  served  oil  any 


146  GARNISHMENTS 

person,  and  such  person,  after  the  date  of  such  service,  becomes 
indebted  to  the  defendant,  such  subsequent  indebtedness  imme- 
diately upon  its  accruing  shall  become  subject  to  the  lien  of  such 
garnishment,  and  no  payments  made  by  the  garnishee  to  the 
defendant,  or  to  his  order,  after  the  date  of  the  service  of  the 
garnishment,  shall  defeat  the  lien  of  such  garnishment.  The 
service  of  a  summons  of  garnishment  shall  in  all  cases  operate 
as  a  lien  on  all  the  garnishee's  indebtedness  at  the  date  of  the 
service  and  also  on  all  future  indebtedness  accruing  up  to  the 
date  of  the  answer,  and  such  lien  shall  not  be  defeated  by  any 
payments  by  the  garnishee  or  overdrafts  by  the  defendant  or 
other  arrangements  between  the  defendant  and  the  garnishee." 
Code,  §5273. 

SEC.  362.  DOES  NOT  AFFECT  EXEMPTIONS.  "The  preceding 
section  shall  not  operate  to  change  or  alter  the  laws  exempting 
from  the  process  and  liabilities  of  garnishment  the  daily,  weekly, 
or  monthly  wages  of  journeymen  mechanics  and  day-laborers." 
Code,  §5274. 

SEC.  363.  GARNISHMENTS  ON  JUDGMENTS  IN  COURT  OF  ORDI- 
NARY. "In  all  cases  where  judgment  has  been,  or  may  hereafter 
be,  obtained  in  the  courts'  of  ordinary  of  this  State,  the  plaintiff 
in  such  judgment  shall  be  entitled  to  process  of  garnishment, 
as  in  other  cases  of  garnishment  at  common  law,  and  the  pro- 
ceedings in  such  cases  shall  be  the  same  as  though  such  judgment 
may  have  been  obtained  in  the  superior  court:  Provided,  how- 
ever, that  the  person  sought  to  be  garnished  shall  be  directed 
and  required  to  answer  at  the  next  term  of  the  superior  court 
of  the  county  wherein  the  garnishee  resides' ;  but  if  the  next  term 
of  the  superior  court  shall  be  held  within  less  than  ten  days  after, 
the  summons  issues,  then  the  garnishee  shall  be  required  to 
appear  and  answer  at  the  next  term  of  the  court  thereafter." 
Code,  §5275. 

SEC.  364.  GARNISHMENTS  AGAINST  PERSONS  IN  OTHER 
COUNTIES.  "The  plaintiffs  named  in  the  foregoing  s'ection  shall 
have  power  to  garnish  persons  in  counties  other  than  the  county 
wherein  their  judgments  are  or  may  have  been  obtained,  as  in 
other  cases  of  garnishment  at  common  law ;  and  the  defendants 
in  such  judgments  and  claimants  to  the  money  or  property  in 
the  hands  of  the  garnishee  shall  have  the  right  to  dissolve  such 
garnishments,  or  to  claim  said  money  or  property,  in  the  same 
manner  as  in  other  cases  of  garnishment  at  common  law."  Code, 
§5276. 


GARNISHMENTS  147 

SEC.  365.  GARNISHMENT-  AGAINST  PERSONS  RESIDING  OUT 
OF  THE  COUNTY.  "When  any  of  the  persons  sought  to  be  gar- 
nished reside  in  a  different  county  from  the  one  where  suit  is 
pending  or  in  which  judgment  was  obtained,  it  shall  be  the  duty 
of  the  officer  taking  such  affidavit  and  bond,  or  any  officer  of  the 
county  where  such  suit  is  pending  or  where  such  judgment  was 
obtained,  authorized  by  this  Code  to  issue  an  attachment,  to 
whom  said  bond  and  affidavit  may  be  delivered,  to  make  out  a 
copy  thereof  and  certify  the  same  to  be  true,  and  to  deliver  said 
certified  copy  to  the  plaintiff,  his  agent,  or  attorney  at  law ;  and 
upon  such  certified  copy  being  delivered  to  any  officer  authorized 
to  issue  an  attachment,  of  the  county  where  the  person  sought 
to  be  garnished  resides,  it  shall  be  the  duty  of  such  officer  to 
issue  summons  of  garnishment  for  such  person  as  he  may  be 
directed  by  the  plaintiff,  his  agent,  or  attorney  at  law,  requiring 
him  to  appear  at  the  next  superior  or  justice's  court  of  said 
county,  according  as  such  suit  is  pending  or  judgment  was 
obtained  in  the  superior  or  justice's  court,  then  and  there  to 
depose  according  to  the  provisions  of  the  previous  sections ;  but 
if  the  said  superior  court  shall  be  held  within  less  than  twenty 
days,  or  said  justice's  court  shall  be  held  within  less  than  ten 
days,  from  the  time  such  garnishment  is'sues,  the  garnishee  shall 
be  required  to  appear  at  the  next  court  thereafter."  Code, 
$5277. 

SEC.  366.  GARNISHMENT  IN  ANOTHER  COUNTY.  "When 
any  of  the  persons  sought  to  be  garnished  reside  in  a  different 
county  from  the  one  where  suit  is  pending  or  in  which  judgment 
was  obtained,  the  plaintiff,  his  agent,  or  attorney  at  law  may 
make  affidavit  and  give  bond  in  any  county  in  the  State,  before 
any  officer  authorized  to  issue  an  attachment  under  this  Code, 
and  it  shall  be  the  duty  of  the  officer  taking  such  affidavit  and 
bond  to  make  out  a  copy  thereof  and  certify  the  same  to  be  true, 
and  to  issue  summons  of  garnishment  for  such  person  as  he  may 
be  directed  by  the  plaintiff,  his  agent,  or  attorney  at  law,  re- 
quiring him  to  appear  at  the  next  superior  or  justice's  court 
of  the  county  of  the  garnishee's  residence,  according  as  such 
suit  is  pending  or  judgment  was  obtained  in  the  superior-  or 
justice's  court,  then  and  there  to  depose  according  to  the  pro- 
visions of  law;  and  it  shall  be  the  duty  of  the  officer  serving 
such  summons  to  return  or  transmit  the  certified  affidavit  and 
bond,  together  with  his  actings  and  doings  thereon,  to  the  supe- 
rior or  justice's  court  of  the  county  in  which  such  suit  is  pend- 
ing or  judgment  wrae>'  obtained,  and  to  return  the  original  affidavit 


148  GARNISHMENTS 

and  bond  to  the  court  where  such  person  is  summoned  to  appear, 
with  his  actings  and  doings  thereon;  and  all  subsequent  pro- 
ceedings shall  be  the  same  as  prescribed  by  this  Code  in  relation 
to  garnishment  in  cases  of  attachment,  where  the  garnishee 
resides  out  of  the  county  in  which  the  attachment  is  returnable. 
This  section  shall  not  be  so  construed  as  to  repeal  the  preceding 
section,  but  as  providing  an  additional  mode  of  obtaining  gar- 
nishment against  persons  residing  out  of  the  county  where  suit 
is  pending,  or  in  which  judgment  was  obtained;  and  so  much 
of  said  section  as  relates  to  the  time  in  which  service  of  sum- 
mons of  garnishment  shall  be  made  returnable  to  the  superior 
or  justice's  court  is  hereby  made  a  part  of  this  section."  Code, 
§5278. 

SEC.  367.  How  ISSUED,  SERVED,  AND  RETURNED,  ETC. 
"Upon  such  certified  copy  of  affidavit,  bond,  and  summons'  of 
garnishment  being  delivered  to  any  officer  authorized  by  law  to 
levy  an  attachment,  it  shall  be  his  duty  to  serve  the  summons 
upon  the  person  to  whom  it  is  directed,  and  to  return  the  said 
copy  affidavit  and  bond  to  the  court  where  such  person  is  sum- 
moned to  appear,  together  with  his  actings  and  doings  entered 
thereon,  and  all  subsequent  proceedings  shall  be  the  same  as 
prescribed  by  this  Code  in  relation  to  garnishment  in  cases  of 
attachment,  where  the  garnishee  resides  out  of  the  county  in 
which  the  attachment  is  returnable."  Code,  §5279. 

SEC.  368.  DISSOLUTION  or  GARNISHMENTS.  "In  any  case 
when  garnishment  has  been  issued,  the  defendant  may  dissolve 
such  garnishment  upon  filing  in  the  clerk's'  office  of  the  court, 
or  with  the  justice  of  the  peace,  where  suit  is  pending  or  judg- 
ment was  obtained,  a  bond  with  good  security,  payable  to  the 
plaintiff,  conditioned  for  the  payment  of  the  judgment  that  shall 
be  rendered  on  said  garnishment.  The  plaintiff  may  enter  up 
judgment  upon  such  bond  against  the  principal  and  securities, 
as  judgment  may  be  entered  against  securities  upon  appeal, 
whenever  said  plaintiff  shall  obtain  the  judgment  of  the  court 
against  the  property  or  funds'  against  which  garnishment  was 
issued."  Code,  §5280. 

SEC.  369.  ANSWER  OF  GARNISHEE  AND  JUDGMENT.  "The 
garnishee  shall  file  his  answer  stating  what  amount  he  was  in- 
debted to  the  defendant,  or  what  effects  he  had  in  his  hands  be- 
longing to  defendant,  at  the  time  of  the  service  of  such  summons, 
and  what  he  has  become  indebted  to  the  defendant,  or  what  effects 
have  come  into  his  hands  belonging  to  the  defendant,  between  the 


GARNISHMENTS  149 

time  of  the  service  of  such  summons  and  the  making  of  his 
answer;  and  in  the  event  the  court  shall  decide  that  the  fund 
or  property  in  the  hands  of  the  garnishee  was  subject  to  garnish- 
ment had  the  garnishment  not  been  dissolved,  then  the  court 
shall  render  judgment  against  the  defendant  and  his  securities ; 
and  in  case  the  garnishee  fails  or  refuses  to  file  the  answer 
provided  for  in  this  section,  judgment  by  default  may  be  en- 
tered against  him  for  such  an  amount  as  may  have  been  obtained 
by  judgment  against  the  defendant,  which  judgment  may  be 
enforced  against  the  garnishee,  notwithstanding  a  bond  to  dis- 
solve the  garnishment  may  have  been  filed  by  the  defendant ; 
and  upon  such  judgment  being  entered,  judgment  may  be  had 
for  the  amount  thereof  against  the  defendant  and  the  sureties 
on  the  bond  given  to  dissolve  the  garnishment."  Code,  §5281. 

SEC.  370.  CLAIMANTS  MAY  DISSOLVE  GARNISHMENT.  "When- 
ever any  process  of  garnishment  is  served  upon  any  person, 
based  upon  suit,  attachment,  or  judgment,  and  there  shall  be 
money  or  property  of  any  kind  or  description  in  the  hands  of 
the  garnishee,  or  that  shall  come  into  his  hands  so  as  to  fall 
within  the  operation  of  the  summons  of  garnishment  so  served 
as  aforesaid,  which  is  claimed  to  be  the  property  or  money  of 
any  person  not  a  party  to  the  proceeding  upon  which  said  gar- 
nishment is  based,  said  claimant  may  dissolve  said  garnishment 
by  filing  in  the  clerk's  office  of  the  superior  court  of  any  county, 
or  of  any  city  court,  or  in  the  office  of  any  justice  of  the  peace 
or  notary  public,  according  as  said  garnishment  may  be  return- 
able to  the  superior,  city,  justice's,  or  notary  public's  court,  a 
bond  with  good  security  in  twice  the  amount  of  the  sum  claimed 
upon  said  suit,  attachment,  or  judgment,  to  be  approved  by  said 
clerk,  or  said  justice  of  the  peace  or  notary  public,  conditioned 
to  pay  to  the  plaintiff  the  sum  that  may  be  found  due  to  said 
defendant  upon  the  trial  of  any  issue  that  may  be  formed  upon 
the  answer  of  the  garnishee,  or  that  may  be  admitted  to  be  due 
in  said  answer,  if  untraversed."  Code,  §5282. 

SEC.  371.  TRAVERSE,  ETC.,  ON  ANSWER  OF  GARNISHEE. 
"The  garnishee,  upon  answering,  shall  be  discharged  from  all 
further  liability,  and  the  plaintiff's  remedy  shall  be  upon  the 
bond  so  executed  as  aforesaid ;  the  plaintiff  or  claimant,  or  both 
of  them  may  traverse  said  answer,  and  the  issue  upon  said 
traverse  shall  be  submitted  to  a  jury  as  other  issues  upon  the 
answer  of  garnishee;  if  said  garnishee  fails  to  answer  within 
the  time  required  by  the  laws  of  this  State,  judgment  shall  be 


150  GARNISHMENTS 

had  against  him,  and  he  shall  be  liable  thereon,  notwithstanding 
any  bond  that  may  have  been  executed  by  any  claimant  of  the 
fund  or  property  in  his  hands."  Code,  §5283. 

SEC.  372.  NOTICE  OF  TRAVERSE  MUST  BE  GIVEN.  "When 
an  answer  of  garnishment  is  traversed,  if  the  proceedings  be  in 
a  justice's  court,  notice  of  such  traverse  shall  be  given  in  writing 
to  the  garni&hee  if  such  garnishee  be  accessible,  if  not,  then  to 
his  agent  or  attorney  of  record,  at  least  five  days  before  the  trial 
of  such  garnishment,  and  in  any  other  courts  at  least  ten  days 
before  the  trial  of  such  garnishment."  Code,  §5284. 

SEC.  373.  SERVICE  ON  ATTORNEY  OR  AGENT  OF  NON-RESI- 
DENT CORPORATION.  "If  the  garnishee  be  a  non-resident  cor- 
poration, service  of  notice  of  traverse  upon  any  duly  authorized 
agent  or  the  attorney  of  record  of  such  corporation  shall  be 
sufficient."  Code,  §5285. 

SEC.  374,.  WHEN  NOTICE  NOT  NECESSARY.  "If  the  gar- 
nishee, his  agent,  or  attorney  of  record,  as  hereinbefore  provided, 
be  inaccessible,  notice  of  such  traverse  shall  not  be  necessary, 
and  any  judgment  taken  against  the  garnishee  shall  be  valid; 
but  in  all  other  cases  any  judgment  taken  against  the  garnishee 
without  service  of  such  notice  of  traverse  shall  be  void."  Code, 
§5286. 

SEC.  375.  SERVICE,,  How  PERFECTED.  "The  service  of  notice 
of  traverse  shall  be  perfected  by  the  plaintiff,  his  agent,  or 
attorney  of  record,  or  by  the  proper  officer  of  said  court,  either 
by  serving  the  garnishee,  his  agent,  or  attorney  of  record  in 
pers'on  or  by  leaving  a  copy  of  such  notice  of  traverse  at  the 
most  notorious  place  of  abode  of  such  garnishee,  his  agent,  or 
attorney,  or  by  acknowledgment  of  service."  Code,  §5287. 

SEC.  376.  THE  FUND  OR  PROPERTY  TO  BE  DELIVERED  TO 
CLAIMANT.  "The  garnishee  shall  pay  over  or  deliver  any  money 
or  property  to  the  claimant  upon  the  dissolution  of  the  garnish- 
ment in  manner  aforesaid,  unless  prevented  by  other  legal  proc- 
ess." Code,  §5288. 

SEC.  377.  CLAIMANT  Is  PARTY  TO  SUBSEQUENT  PROCEED- 
INGS. "The  claimant  of  any  fund  or  property,  to  whom  the 
same  may  have  been  paid  or  delivered  upon  the  dissolution  of 
the  garnishment  in  the  manner  before  prescribed,  shall  be  a 
party  to  all  further  proceedings  upon  said  garnishment;  and 
judgment  shall  be  had  instanter  upon  said  bond  for  any  sums 


GARNISHMENTS  151 

or  the  value  of  any  property  that  may  be  found  to  have  "been  in 
the  hands  of  said  garnishee,  liable  to  the  operation  of  said  sum- 
mons of  garnishment."  Code,  §5289. 

SEC.  378.  MONEY  RAISED  BY  GARNISHMENT,  How  DIS- 
TRIBUTED. "All  money  raised  by  virtue  of  the  process  of  gar- 
nishment under  this  Code  shall  be  paid  over  to  the  creditors  of 
the  defendant,  according  to  the  priorities  now  established  by 
law — the  expenses  of  the  moving  creditor  being  first  paid  pro 
rata  by  the  judgment  creditors  receiving  the  benefit  of  his  dili- 
gence." Code,  §5290. 

SEC.  379.  GARNISHEE  LIABLE  FOR  INTEREST,  WHEN.  "As 
a  general  rule,  a  party  who  is  prevented  from  paying  over  money 
by  process  of  law  is  not  liable  for  interest;  but  if  a  garnishee 
resists  the  payment  of  the  fund  in  his  hands',  or  controverts  his 
indebtedness,  he  is  liable  for  interest  thereon — but  he  may  re- 
lieve himself  from  interest  by  paying  the  fund  into  court." 
Code,  §5291. 

SEC.  380.  JUDGMENT.  "The  plaintiff  shall  not  have  judg- 
ment against  the  garnishee  until  he  has  obtained  judgment 
against  the  defendant."  Code,  §5292. 

SEC.  381.  ANSWER  OF  GARNISHEE.  "The  garnishee  must, 
in  his  answer,  admit  or  deny  his  indebtedness,  or  that  he  has  or 
had  effects  in  his  hands  belonging  to  defendant ;  and  if  he  is 
unable  to  do  so,  his  inability  must  appear  in  his  answer,  together 
with  all  the  facts  plainly,  fully,  and  distinctly  set  forth,  so  as 
to  enable  the  court  to  give  judgment  thereon."  Code,  §5293. 

SEC.  382.  GARNISHEE  RELIEVED  FROM  COST  OF  ANSWER. 
"In  all  cases  where  process1  of  garnishment  shall  be  served  upon 
any  person,  and  such  person  shall  make  a  true  answer  to  the 
garnishment,  as  now  required  by  law,  and  shall  pay  the  sum  due 
to  the  defendant  into  court,  or  shall  turn  over  and  deliver  up 
any  personal  property  of  the  defendant  that  he  may  have  in  his 
possession,  as  required  by  law,  or  shall  answer  truly  that  he 
owes  the  defendant  nothing,  if  the  garnishee  shall  have  to  incur 
any  expense  in  making  his  or  her  answer  to  the  garnishment, 
or  in  turning  over  said  personal  property,  the  amount  so  incurred 
shall  be  taxed  in  the  bill  of  costs,  under  the  approval  of  the 
court,  and  be  paid  by  the  party  cast  in  the  suit,  as'  other  costs 
are  now  paid."  Code,  §5294. 

SEC.  383.  REMEDIES  AGAINST  GARNISHEE.  "Whenever  the 
garnishee  shall  answer  that  he  has  money  or  currency  in  his 
control  belonging  to  the  defendant  in  the  principal  suit,  or  the 


152  GARNISHMENTS 

fact  shall  be  ascertained  in  the  manner  provided  by  law,  the 
plaintiff,  in  addition  to  other  remedies  now  existing,  shall  have 
the  same  remedy  to  enforce  the  delivery  of  such  money  or  cur- 
rency as  exists  under  section  5098  of  this  Code,  to  enforce  the 
delivery  of  property  or  effects;  and  all  the  provisions  of  said 
section  as  it  exists,  and  shall  exist,  shall  apply  to  garnishments 
at  common  law."  Code,  §5295. 

SEC.  384.  COLLATERALS  NOT  SUBJECT  TO  GARNISHMENT. 
"Collateral  securities  in  the  hands  of  a  creditor  shall  not  be  the 
subject  of  garnishment  at  the  instance  of  other  creditors."  Code, 
§5296. 

SEC. '385.  ATTORNEY  AT  LAW  Is  SUBJECT  TO  GARNISHMENT. 
"An  attorney  at  law,  who  has  money  or  other  effects  in  his  hands 
belonging  to  the  defendant,  shall  be  subject  to  be  garnished." 
Code,  §5297. 

SEC.  386.  EXEMPTION  OF  -WAGES.  "All  persons  shall  be 
exempt  from  the  process  and  liabilities  of  garnishment  on  one 
dollar  and  twenty-five  cents  per  day  of  their  daily,  weekly,  or 
monthly  wages  and  on  fifty  per  cent,  of  the  excess  thereof, 
whether  in  the  hands  of  their  employers  or  others.  All  wages1 
above  the  exemption  herein  provided  for  shall  be  subject  to 
garnishment,  and  garnishee  in  making  answer  shall  state  spe- 
cifically when  the  wages  therein  referred  to  were  earned  by 
defendant  and  whether  the  same  were  earned  as  daily,  weekly,  or 
monthly  wages."  Acts  1914,  p.  62.  (Park's  Annotated  Code, 
1914,  §5298). 

SEC.  387.  CREDITORS  PROHIBITED  FROM  TRANSFERRING 
CLAIMS  TO  PARTIES  WITHOUT  THE  STATE.  "Whoever  assigns 
or  transfers  or  sends  out  of  this  State,  by  himself  or  agents,  any 
claim  for  debt  against  a  resident  of  this  State,  for  the  purpose 
of  having  the  same  collected  by  proceedings  in  attachment  or 
by  garnishments  in  courts  outside  of  this  State,  with  intent  to 
deprive  a  resident  of  this  State  of  the  right  to  have  his  wages 
exempt  from  garnishment  as  provided  by  the  laws  of  this  State, 
where  the  creditor  and  debtor  and  person  or  corporation  owing 
the  money  intended  to  be  reached  by  such  proceedings  are  within 
the  jurisdiction  of  the  courts  of  this  State,  thereby  seeking  to 
evade  said  law  and  defeat  the  public  policy  of  this  State,  shall 
be  guilty  of  a  misdemeanor."  Code,  §5299. 

SEC.  388.  DAMAGES,  RIGHT  TO  RECOVER.  "And  the  person 
whose  personal  earnings  are  so  attached  or  garnished  shall  have 
a  right  of  action  before  any  court  of  this  State  having  jurisdic- 


GARNISHMENTS  153 

tion,  to  recover  the  amount  attached  and  any  costs  paid  by  him 
in  such  attachment  proceedings,  together  with  all  damages  which 
he  or  they  may  sustain  thereby,  particularly  such  damages  as 
may  result  to  such  person  or  persons  because  of  any  loss  of 
employment  by  them,  or  discharge  or  suspension  from  work, 
because  of  any  levy  of  such  attachment  or  garnishment  proceed- 
ings, either  from  the  person  so  assigning,  transferring,  or  send- 
ing such  claim  but  of  the  State  to  be  collected,  as  aforesaid,  or 
the  person  to  whom  such  claim  may  be  assigned,  transferred, 
or  sent,  as  aforesaid,  or  both,  at  the  option  of  the  person  bring- 
ing such  stilt.  The  money  thus  recovered  shall  not  be  subject 
to  garnishment."  Code,  §5300. 

SEC.  389.  PRIMA  FACIE  EVIDENCE.  "The  assignment,  trans- 
fer, or  sending  of  such  claim  to  a  person  not  a  resident  of  this 
State,  and  the  commencement  of  such  proceedings  in  attachment 
outside  of  this  State,  shall  be  considered  prima  facie  evidence 
of  the  violation  of  the  two  preceding  sections."  Code,  §5301. 

SEC.  390.  SALARY  OF  OFFICERS,  WHEN  SUBJECT.  "All  cor- 
porations in  this'  State,  except  municipal  corporations,  shall  be 
liable  to  garnishment  for  the  salaries  of  their  officers,  in  all 
cases  where  such  salary  exceeds  the  sum  of  five  hundred  dollars 
per  annum."  Code,  §5302. 

SEC.  391.  .WHEN  LEGATEES,  ETC.,  ARE  SUBJECT  TO  GAR- 
NISHMENT. "As  a  general  rule,  the  interest  of  a  legatee  or 
distributee  is  not  the  subject  of  garnishment  issued  against  an 
executor  or  administrator;  but  if  the  legacy  has  been  assented 
to  by  the  executor,  and  such  legacy  is  not  defeated  by  debts 
against  the  estate,  and  when  there  has  been  a  final  settlement  by 
the  administrator,  and  there  remains  in  his  hands  a  fixed  bal- 
ance, such  legacy  or  the  interest  of  the  distributee  or  heir  may 
be  reached  by  process  of  garnishment  at  the  instance  of  a  creditor 
of  such  legatee,  distributee,  or  heir  at  law,  as  the  case  may  be." 
Code,  §5303. 

SEC.  392.  EXECUTORS,  ETC.,  MAY  BE  GARNISHED,  WHEN. 
"In  every  case  a  garnishment  may  be  issued  against  an  executor 
or  administrator  for  a  legacy  or  distributive  share,  or  for  any 
debt  or  demand  owing  by  said  estate  to  any  other  person,  if  the 
creditor  will  swear — in*  addition  to  the  oath  required  in  ordi- 
nary cases — that  his  debtor  resides  without  the  State,  or  is 
insolvent.  In  such  cases  the  executor  or  administrator  shall  not 


154  GARNISHMENTS 

be  compelled  to  answer  the  garnishment  until  the  estate  in  his' 
hands  is  sufficiently  administered  to  enable  him  safely  to  answer 
the  same."  Code,  §5304. 

SEC.  393.     AFFIDAVIT  FOB  GARNISHMENT. 
Georgia,    County. 

Before  me, .  . ,  J.  P.,  in  and  for  the 

District,  G.  M.,  of County,  personally  came 

John  Doe,  the  affiant,  who,  being  duly  sworn,  on  oath  says  that 

Richard  Roe  is  indebted  to  him  in  the  sum  of 

($ )  dollars  for  principal  debt, 

($ )  dollars  for  interest  to  judgment, 

($ )  dollars,  attorney's  fees,  and 

dollars  and cents  for  costs  of  suit,  in  favor 

of  affiant  against  said  Richard  Roe,  on  a  judgment  obtained  in 

the  Justice  Court  of  the District,  G.  M-.,  of 

County,  at  the   term,  19 , 

before ,  J.  P.,  and  affiant  apprehends 

the  loss  of  said  amounts  or  some  part  thereof  unless  process  of 
garnishment  do  issue. 

JOHN  DOE. 
Sworn  to  and  subscribed  before  me  this 

the day  of ,19 - 

,  J-  P. 

SEC.  394.     GARNISHMENT  BOND. 
Georgia,   County. 

Know  all  men  by  these  presents  that  we,  John  Doe,  as  prin- 
cipal, and  John  Smith,  as  security,  are  bound  jointly  and  sev- 
erally unto  Richard  Roe,  in  the  just  and  full  sum  of 

($ )    dollars,  subject  to  the  conditions  hereinafter 

stated :     Signed  with  our  hands  and  sealed  with  our  seals,  this 

the day  of ,19 The  condition 

of  the  above  obligation  is  as  follows : 

John  Doe  has  this  day  made  affidavit  before , 

J.   P.,  that  Richard  Roe  is  indebted  to  him  in  the  sum  of 

($ )  dollars,  for  principal,  interest, 

cost  and  attorney's  fees,  upon  a  certain  judgment  obtained  by 
John  Doe  against  Richard  Roe  in  the  Justice  Court  of  the 

District,  G.  M.,  of  said  county,  at  the 

term,  19.  .  .  .,  wherein  John  Doe  was  plaintiff  and  Richard  Roe 
was  defendant,  and  said  affidavit  being  made  for  the  purpose 
of  obtaining  the  process  of  garnishment. 


GARNISHMENTS  155 

Now,  should  the  said  John  Doe  pay  said  Richard  Roe  all 
costs  and  damages  that  he  may  sustain  in  consequence  of  suing 
out  said  garnishment,  should  it  appear  that  the  amount  sworn 
to  be  due  on  said  judgment  was  it  not  in  fact  due,  or  should  it 
appear  that  the  property  or  money  sought  to  be  garnished  was 
not  subject  to  process  of  garnishment,  then  this1  bond  to  be  void, 
otherwise  of  full  force  and  effect. 

JOHN  DOE  (Principal)       (L.  S.) 
JOHN  SMITH   (Security)    (L.  S.) 
Executed  in  the  presence  of  and  approved 
by  me: 
' 


.....  ......................  -,     -      . 

SEC.  395.    AFFIDAVIT  FOE  GARNISHMENT  IN  SUIT  PENDING. 
Georgia,  ...............  County. 

Before  me,   .....................  ,  J.  P.,  in  and  for  the 

..........  District,  G.  M.,  of  said  County,  personally  came 

John  Doe,  the  affiant,  who,  being  duly  sworn,  on  oath  says  he 
has  now  pending  in  the  Justice  Court  of  the  .........  District, 

G.  M.,  of  said  County  a  certain  suit  against  Richard  Roe,  re- 
turnable to  the  ............  term,  19.  .  .  .,  the  same  being  a 

s'uit  upon  a  note  for  .................    ($  ........  )  dollars, 

principal  debt,  dated  ....................  ,  19  .  .  .  .  ,  and  due 

......................  .  .  ,  19  .  .  .  .  ,  with  interest  from  date 

at  ............  per  cent,  per  annum-,  with  a  provision  therein 

for  the  collection  of  .........  per  cent,  attorney's  fees  in  the 

event  said  note  is  placed  in  the  hands  of  an  attorney  for  collec- 
tion or  by  suit,  and  said  amounts  are  due  in  said  suit,  and  affiant 
apprehends  the  loss  of  the  said  sum  or  some  part  thereof  unless' 
process  of  garnishment  do  issue. 

JOHN  DOE. 

Sworn  to  and  subscribed  before  me,  this 
the  ......  -day  of  .............  ,  19  ____ 

.............................  ,J.P. 

SEC.  396.     BOND. 

Georgia,  ..............  County. 

Know  all  men  by  these  presents,  that  we,  John  Doe,  as  prin- 
cipal, and  John  Smith,  as'  security,  are  held  and  firmly  bound 
jointly  and  severally  unto  Richard  Roe  in  the  just  and  full  sum 
of  ................    ($  ........  )  dollars,  subject  to  the  con- 

ditions hereinafter  stated.     Signed  with  our  hands  and  sealed 
with  our  seals,  this  the  ......  day  of.  .  ,  ..........  •.  ,  19  ..... 

The  conditions  of  the  above  obligation  are  as  follows: 


156  GARNISHMENTS 

Whereas,  John  Doe  has  on  this  day  made  before , 

J.  P.,  in  and  for  the District,  G.  M.,  of  s'aid  county, 

an  affidavit  to  obtain  the  process  of  garnishment  in  a  certain 
suit  he  has  pending  before  said  Justice  of  the  Peace  in  said 
district,  wherein  he  claims  that  said  Richard  Roe  is  indebted  to 

him  in  said  suit  in  the  sum  of dollars  ($ ) 

and cents,  for  principal,  interest  and  attorney's'  fees, 

said  suit  being  returnable  to  the ,  term,  19.  .  .  ., 

of  said  Justice  Court. 

Now  should  the  said  John  Doe  pay  said  Richard  Roe  all 
costs  and  damages  that  he  may  sustain  in  consequence  of  suing 
out  said  process  of  garnishment,  in  the  event  that  he  shall  fail 
to  recover  in  said  suit  or  it  should  appear  that  the  property  or 
money  sought  to  be  garnished  was  not  subject  to  process  of 
garnishment,  then  this  bond  to  be  void,  otherwise  of  full  force 
and  effect. 

JOHN  DOE  (Principal)       (L.  S.) 
JOHN  SMITH   (Security)    (L.  S.) 
Signed  in  the  presence  of  and   attested 
by  me: 

,  J.  P. 

(NOTE:  It  will  be  noted  from  the  statute  that  the  amount  of  the  bond 
shall  not  be  less  than  double  the  amount  sworn  to  be  due.  The  bond 
should  be  at  least  double  the  amount  sworn  to  be  due  and  may  be  more.) 

SEC.  397.     SUMMONS  OF  GARNISHMENT. 

-r^i  .    ,.«.      1  Suit  on  note  in  Justice  Court  of 
JOHN  DOE.  Plaintiff,  ,,  TV  ,  •  ,    r\    -\/r      f 

I       the District.  G.  M.,  of 

VQ  r 

RICHARD  ROE,  Defendant  ^'     rp 

J       J .  Jr., lerm,  19 .... 

Georgia, County. 

To  John  Jones,  a  Resident  of  said  District,  Garnishee: 

You  are  hereby  required  to  be  and  appear  at  the  Justice 

Court  of  the District,  G.  M.,  of  said  County,  at  the 

usual  place  of  holding  said  Court  at  the  Court-house  in  said 

district  on  the day  of ,  19 .  . .  . ,  at  ten 

o'clock,  A.  M.,  to  answer  on  oath  what  you  are  indebted  to  said 
Richard  Roe,  the  defendant,  or  what  property  and  effects  you 
have  received  or  gotten  possession  of  belonging  to  the  said  de- 
fendant between  the  time  of  the  service  of  this  summons  and 

the  time  of  making  this  your  answer.     This  the day 

of ,19 

J.P. 


GARNISHMENTS  157 

SEC.  398.     RETURN  OF  SERVICE. 
Georgia,   County. 

Have  this  day  served  John  Jones,  garnishee,  personally  with 

a  summons  of  garnishment  returnable  to  the term 

of  the  Justice  Court  of  the District,  G.  M.,  of 

County.     This  the day  of ,  19 


L.  0. 
SEC.  399.     BOND  TO  DISSOLVE  GARNISHMENT. 

Georgia, County. 

Know  all  men  that  we,  Richard  Roe,  as  principal,  and  Peter 
Jones1,  as  security,  are  held  and  firmly  bound  unto  John  Doe 
in  this  obligation  to  pay  to  him  whatever  judgment  may  be 
rendered  against  John  Jones,  garnishee,  in  a  certain  garnish- 
ment proceeding  in  the  case  of  John  Doe  vs.  Richard  Roe, 

pending  in  the  Justice  Court  of  the District,  G.  M., 

of  said  county,  which  suit  was  returnable  to  the 

term,  19.  . .  .,  of  said  court,  the  said  John  Doe  having  sworn 
in  said  affidavit  to  secure  said  garnishment  that  Richard  Roe 

was1  indebted  to  him  in  said  suit  in  the  sum  of 

($ )  dollars  and cents,  and  John  Jones 

having  been  served  as  garnishee  in  said  case,  which,  if  said 
principal  shall  do,  this  bond  to  be  void,  otherwise  of  full  force 

and  effect.     Witness  our  hands  and  seals,  this day 

of ,19 

RICHARD  ROE,   (Principal)    (L.  S.) 
PETER  JONES,   (Security)      (L.  S.) 
Executed  in  the  presence  of  and  approved 
by  me: 


SEC.  400.    NOTICE  OF  DISSOLUTION  OF  GARNISHMENT. 
JOHN  DOE 

vs.  Suit  on  note  in  the District,  G.  M., 

RICHARD  ROE          •     of County, Term,  19 ... 

AND  JOHN  JONES,       Garnishment. 
Garnishee.  , 

Georgia, County. 

To  John  Jones,  Garnishee: 

You  are  hereby  notified  that  the  garnishment  sworn  out  in 
the  above  named  and  stated  ease  by  John  Doe,  as  plaintiff,  and 


158  GARNISHMENTS 

in  which  you  have  been  served  as  garnishee,  has  been  dissolved 
by  the  said  Richard  Roe  by  giving  bond  as  provided  by  law, 
and  the  fund  or  property  sought  to  be  garnished  is  hereby  re- 
leased subject  to  the  order  of  Richard  Roe,  and  you  are  relieved 
from  any  further  liability  except  you  are  required  to  make  your 
answer.  This ,  19 .... 

J.  P. 

SEC.  401.  GARNISHEE  MUST  ANSWER,  WHEN.  "When  a 
process  of  garnishment  is  issued  out,  returnable  to  any  justice's 
court  and  served  upon  the  garnishee,  it  shall  be  the  duty  of  the 
garnishee  to  answer  at  the  term  to  which  the  garnishment  is 
made  returnable.  And  in  case  of  failure  so  to  answer,  the 
justice  of  the  peace  shall  enter  a  default  against  the  garnishee, 
and.  shall  enter  up  judgment  in  favor  of  the  plaintiff  against 
the  garnishee,  for  such  an  amount  as  may  have  been  obtained 
by  judgment  against  the  defendant,  or  for  such  amount  as  may 
thereafter  be  recovered  in  the  pending- suit.  After  judgment 
obtained,  and  when  the  garnishee  appears  and  answers  that  he 
is  indebted  to  or  has  effects  in  his  hands  belonging  to  the  de- 
fendant, the  court  shall  proceed  as  prescribed  in  section  5098 
of  this  Code."  Code,  §4753. 

SEC.  402.     ANSWER  OF  GARNISHEE. 


JOHN  DOE 


vs. 


RICHARD  ROE 

and 
JOHN  JONES,  Garnishee. 


Suit  on  note  in  the  Justice  Court 

of  the District,  G.  M., 

of  said  County, Term, 

19 

Garnishment. 


Georgia, County. 

Before  me, ,  J.  P.,  in  and  for  the 

District,  G.  M.,  of  said  County,  personally  came 

John  Jones,  who,  being  duly  sworn,  on  oath  says  that  he  was 
served  with  summons  of  garnishment  in  the  above  named  and 

stated  case  on ,  19 .  .  .  . ,  and  ordered  to 

answer  therein  at  this  term  of  Court.  Affiant  says  that  at  the 
time  of  this  service  of  said  summons  of  garnishment  he  was 
not  indebted  to  said  Richard  Roe,  defendant,  and  has'  not  become 
indebted  to  him  since  the  service  of  said  summons  up  to  the 
time  of  this  answer,  and  that  at  the  time  of  said  servjce  of 
summons  of  garnishment  this  defendant  had  not  in  his  posses- 
sion or  control  any  property,  money  or  effects'  of  the  said  Richard 


GARNISHMENTS  159 

Roe,  nor  has  any  come  into  his  possession  since  the  service  of 
said  summons  of  garnishment  up  to  the  time  of  this1  answer. 

This  garnishee  asks  a  reasonable  sum,  to  wit,  the  sum  of 

dollars  for  the  cost  of  making  this  answer. 

JOHN  JONES. 
Sworn  to  and  subscribed  before  me,  this 

the day  of ,  19 

,  J..P. 

SEC.  403.     ANSWER  WHERE  DAILY,  WEEKLY  OR  MONTHLY 
WAGES  ARE  GARNISHED. 

JOHN  DOE                ]  a   .,                 .     ,,  TV  ,  .  , 

Suit  on  note  in  the District, 

TTQ 

G.  M.,  of  said  County, 


RICHARD  ROE 


Term,  19 


-,       .  ,  Garnishment. 

JOHN  JONES,  Garnishee.   . 

Georgia,  ............  County. 

Before  me,   .....................  ,  J.  P.,  in  and  for  the 

............  District,  G.  M.,  of  said  County,  personally  came 

John  Jones,  who,  being  duly  sworn,  on  oath  says'  that  in  answer 
to  the  summons  of  garnishment  served  upon  him  on  the  ...... 

day  of  ................  ,   19  .  .  .  .  ,  in  the  above  named  and 

stated  case,  that  at  the  time  of  the  service  of  said  summons  of 
garnishment  he  was  indebted  to  Richard  Roe  in  the  sum  of 
...................  dollars  for  wages  for  his  services  as  a 

laborer  for  ...........  days  during  the  month  of  ..........  , 

19.  .  .  .,  at  .............  dollars  per  day,  and  that  since  the 

service  of  said  summons  up  to  the  time  of  this  answer  he  has 
not  become  further  indebted  to  the  said  Richard  Roe,  and  that 
at  the  time  of  the  service  of  said  summons  of  garnishment  this 
affiant  had  no  property,  or  effects  of  the  said  Richard  Roe  in 
his  possession  or  control,  and  since  said  time  up  to  the  time  of 
this  answer  no  property  or  effects  has  come  into  his  hands1  as 
the  property  of  the  said  Richard  Roe. 

JOHN  JONES,  Garnishee. 
Sworn  to  and  subscribed  before  me,  this 
the  ......  day  of  .............  ,  19  ____ 


............................  ,      -      . 

SEC.  404.  EXPENSE  OF  ANSWERING  AS  PART  OF  COSTS.  "If 
a  garnishee  truly  answers  that  he  owes  the  defendant  nothing, 
and  if  he  had  incurred  any  expenses  in  making  such  answer,  the 
amount  so  incurred  shall  be  taxed  in  the  bill  of  costs  under  the 


160  GARNISHMENTS 

approval  of  the  court,  and  shall  be  paid  by  the  party  cast  in  the 
suit,  as  other  costs  are  now  paid.  A  judgment  is  necessary  to 
approve  it ;  and  where,  in  such  a  case,  the  expenses  of  answering 
were  fully  proved,  and  no  contesting  testimony  was  offered,  a 
judgment  for  the  amount  s'o  proved  was  proper.  53  Ga.,  28; 
Code,  §3549."  74/401. 

"While  the  Code,  §3549,  provides  for  taxing  the  plaintiff  in 
garnishment  with  the  expense  incurred  by  the  garnishee  in 
'making'  a  true  answer  to  the  garnishment,  it  authorizes  no 
allowance  for  counsel  fees  incurred  for.  the  purpose  of  upholding 
the  answer  against  a  traverse  of  the  same,  though  the  finding 
of  the  jury  be  against  the  traverse  and  in  favor  of  the  answer. 
The  expense  of  litigating  the  truth  of  an  answer  is'  not  com- 
prehended in  the  expense  of  making  it,  but  is  additional  thereto." 
82/556  (9  S.  E.  282). 

A.  sues  B.  in  a  justice  court  and  garnishees  C. ;  C.  answers 
and  denies  the  indebtedness ;  has  the  right  to  a  judgment  against 
the  party  cast  in  the  suit  as  against  A.  and  B.,  as  to  the  expense 
of  making  his  answer.  Or  if  C.  answers,  admitting  the  indebt- 
edness or  that  he  has  property  or  effects  in  hands  belonging  to 
B.  and  turns  the  same  over  to  the  court,  in  this  case  he  would 
be  entitled  to  the  expenses  of  making  his  answer  as  against  the 
party  cast  in  the  suit.  If  under  such  circumstances,  C.  answers, 
admitting  the  indebtedness  or  that  he  has  property  or  effects 
in  his  hands  or  such  has  come  into  his  hands'  since  the  summons 
of  garnishment,  but  he  neither  pays  the  money  into  court  nor 
turns  the  property  over  to  the  court,  in  such  case  he  would  not 
be  entitled  to  the  expense  of  making  his  answer.  This  is  the 
rule  that  is  deduced  from  the  Code  and  decisions  in  the  matter. 
Of  course  the  amount  of  such  expenses  must  be  determined 
and  approved  by  the  court. 

SEC.  405.     TEAVEKSE  OF  ANSWER  OF  GARNISHEE. 

JOHN  DOE,  Plaintiff       1  0   .  .      ,  T\S_A_S_I 

Ibuit  on  note  in  the District, 

G.  M.,  of County, 


vs. 


RICHARD  ROE,  Defendant 


Term,  19 


Garnishment. 
JOHN  JONES,  Garnishee. 

Georgia,   County. 

Now  on  this  the day  of ,  19.  . .  ., 

comes  John  Doe,  plaintiff  in  the  above  named  and  stated  case, 
and  traverses  the  answer  filed  this  day  by  John  Jones,  garnishee 
in  said  case,  and  says'  that  the  said  answer  is  riot  true,  and 


GARNISHMENTS  161 

plaintiff  files  this  traverse  and  prays  that  the  same  may  be  tried 

and  determined  by  the  court.     This  the day  of 

,  19.. 


Attorney  for  Plaintiff. 

"A  traverse  of  a  garnishee's  answer  is  sufficient  if  it  merely 
denies  the  truth  of  the  answer.  The  traverse  may  be  amplified 
at  the  option  of  the  plaintiff,  but  nothing  more  is  necessary  to 
bring  in  question  the  liability  of  the  garnishee  to  a  garnishing 
creditor  than  an  unqualified,  though  general,  denial  of  the  truth 
of  the  garnishee's  answer."  3  App..  101  (59  S.  E.  440).  See 
also  21/240. 

SEC.  406.     NOTICE  OF  TRAVERSE  TO  GARNISHEE. 

JOHN  DOE,  Plaintiff      1  0   .,  .      .  ._.  ,  .  , 

buit  on  note  in  the District, 

G.  M.,  of County, 

Term,  19 

Garnishment. 


vs. 
RICHARD  ROE,  Defendant 

and 
JOHN  JONES,  Garnishee. 

Georgia,   County. 

To  John  Jones,  Garnishee: 

You  are  hereby  notified  that  your  answer  as  garnishee  in  the 
above  named  and  stated  case  filed  in  the  said  Justice  Court  on 

the day  of ,    19 .  .  .  . ,   has  been 

traversed  by  the  plaintiff,  and  said  traverse  alleges  that  the 
answer  you  made  in  said  case  was  not  true.  This  traverse  will 
stand  for  trial  in  said  court  after  five  days  from  the  service  of 

this  notice  at  the  present  or  next  term.     This  the day 

of ,  19 

JOHN  DOE,  Plaintiff. 

SEC.  407.     JUDGMENT  ON  ANSWER  OF  GARNISHEE. 


JOHN  DOE,  Plaintiff 


vs. 


RICHARD  ROE,  Defendant 

and 
JOHN  JONES,  Garnishee. 


Suit  on  note  in  the  Justice  Court 

of  the District,  G.  M., 

.  County,    Term, 


19. 

Garnishment. 


In  the  above  named  and  stated  case  John  Jones,  the  garnishee 
therein,  having  answered  that  at  the  time  of  the  summons  of 

said  service  of  garnishment  on  the day  of , 

19.  .  .  .,  he  was  indebted  to  the  defendant,  Richard  Roe,  in  the 
sum  of ($ )    dollars  for 


162  GARNISHMENTS 

days  service  of  the  said  Richard  Roe,  during  the  month  of 

,  19 .  . .  . ,  at dollars  per 

day,  and  that  he  has  not  received  or  gotten  possession  of  any 
property  or  effects  of  the  said  Richard  Roe  in  his  possession 
or  control,  and  that  since  the  service  of  said  summons  of  gar- 
nishment he  has  not  become  indebted  to  the  said  Richard  Roe, 
and  that  no  property  or  effects  of  the  said  Richard  Roe  has 
come  into  his  hands  or  possession  since  the  service  of  said  sum- 
mons of  garnishment,  and  that  it  appearing  that  John  Doe  has 
recovered  judgment  at  this  term  against  Richard  Roe  upon  the 

note  sued  upon  for  the  sum  of ($ ) 

dollars,  principal  debt,  and ($ )  dollars 

for  interest  to  judgment,  and ($ ) 

dollars  for  attorney's  fees,  it  is  considered,  ordered  and  ad- 
judged that  the  plaintiff,  John  Doe,  do  recover  of  defendant, 

John  Jones,  the  sum  of ($ )  dollars 

and cents,  the  amount  liable  to  garnishment  on 

said  answer  with  interest  thereon  at  seven  (7)  per  cent,  per 

annum  from  this  date,  and  the  further  sum  of 

dollars  and cents,  costs  of  garnishment. 

This ,  19 


J.  P. 
-OR— 


JOHN  DOE,  Plaintiff 


vs. 


RICHARD  ROE,  Defendant 
and 


Suit  on  note  in  the  Justice  Court 

of  the District,  G.  M., 

of County,  Georgia, 


,Term,  19 

JOHN  JONES,  Garnishee.   J  Garnishment. 

In  the  above  named  and  stated  case,  the  garnishee,  John 
Jones,  having  answered  that  at  the  time  of  the  service  of  said 

summons  of  garnishment  on ,   19.  .  .  .,  he 

was  indebted  to  the  defendant,  Richard  Roe,  in  the  sum  of 

($ )  dollars,  and  that  he  has 

not  become  further  indebted  since  the  service  of  said  summons 
of  garnishment,  and  that  he  did  not  and  has  not  received  any 
property  or  effects  of  the  said  Richard. Roe  at  any  time  hereto- 
fore in  his  possession,  and  the  said  John  Jones  having  further 
paid  said  money  into  court  along  with  said  answer,  it  is  con- 
sidered, ordered  and  adjudged  that  the  said  John  Jones  be 
discharged  as  garnishee  in  said  case  and  that  he  have  judgment 


SALES  BY  CONSTABLES  163 

for  the  sum  of  $ for  expenses  for  making  his  answer, 

to  be  paid  by  Richard  Roe,  the  party  cast  in  said  suit. 


J.  P. 

SEC.  408.     JUDGMENT  OF  DISCHARGE  OF  GARNISHEE. 
JOHN  DOE,  Plaintiff 


vs. 
RICHARD  ROE,  Defendant 

and 
JOHN  JONES,  Garnishee. 


Suit  on  note  in  the  Justice  Court 

of  the District,  G.  M., 

of County,  Georgia, 


,Term,  19 


Garnishment. 


In  the  above  named  and  stated  case,  John  Jones  having  filed 
his  answer,  wherein  he  denies  any  indebtedness  to  Richard  Roe 
or  that  any  property  or  effects  was  or  has  been  in  his  possession 
since  the  service  of  said  summons  of  garnishment  up  to  the  time 
of  the  making  of  the  answer,  and  said  answer  not  having  been 
traversed,  it  is  considered,  ordered  and  adjudged  that  the  said 
John  Jones  be,  and  he  is,  hereby  discharged  as  garnishee,  and 
it  is  further  ordered  that  the  said  John  Jones  recover  for  the  use 

of  the  officers  of  the  court  against  John  Doe, 

dollars  and cents,  costs  of  said  garnishment,  and  also 

the  further  sum  of  $ for  his  expenses  of  making  said 

answer.     This  the day  of ,  19 . ... 

'j.'p.' 


CHAPTER  XVI 
SALES  BY  CONSTABLES. 
(See  Part  II,  pages  367-373.) 

SECTION  409.  EXECUTIONS,  LEVIES,  AND  SALES.  "In  all 
cases  when  no  appeal  lies  or  none  is  entered,  a  justice  of  the 
peace,  or  commissioned  notary  public,  shall  issue  execution  after 
the  expiration  of  four  days  (Sundays  excepted),  and  the  levy 
shall  be  advertised  ten  days,  in  case  of  personal  property,  before 
the  day  of  sale,  which  advertisement  shall  designate  the  time  and 
place  of  sale,  and  shall  give  a  reasonable  description  of  the  prop- 
erty to  be  sold,  and  shall  be  posted  in  three  public  places'  in  the 
county,  and  the  sale  shall  be  at  the  place  of  holding  justice's 
court  in  his  district,  and  between  the  hours  of  ten  o'clock  a.  m. 


164  SALES  BY  CONSTABLES 

and  four  o'clock  p.  m.  In  case  the  levy  is  upon  real  estate,  it 
shall  be  turned  over  to  the  sheriff  of  the  county  and  disposed  of 
as  now  directed  by  law."  Code,  §4765. 

SEC.  410.  TIME  AND  PLACE  OF  CONSTABLES'  SALES.  "Con- 
stables and  bailiffs  in  the  State  shall  be  required  to  sell  the  prop- 
erty of  defendants  in  execution  on  the  regular  monthly  court 
days  of  their  respective  districts  at  the  place  of  holding  such 
courts,  after  advertising  the  s'aid  property  for  ten  days  prior  to 
such  sale,  and  any  other  sales  on  any  other  days  shall  be  abso- 
lutely null  and  void,  and  vest  no  tile  to  the  property  in  the 
purchaser:  Provided,  nevertheless,  that  the  provisions  of  this 
section  shall  not  be  construed  so  as  to  prevent  the  sale  of  prop- 
erty ordered  to  be  sold  by  the  justice  of  the  peace,  as  live  stock 
or  perishable  property,  and  likely  to  deteriorate  in  value ;  such 
sales,  when  made,  shall  be  valid  and  binding."  Code,  §4766. 

SEC.  411.  LAND  MAY  BE  LEVIED  ON,  WHEN.  "No  constable 
shall  levy  on  any  land  unless  there  is  no  personal  property  to 
be  found  sufficient  to  satisfy  the  debt,  which  fact  must  appear 
by  an  entry  on  the  execution  to  be  levied  by  a  constable  of  the 
county  where  such  execution  was  issued,  or  where  the  property 
to  be  levied  upon  may  be  found :  Provided,  that  the  defendant 
shall  have  the  right  in  all  cases  to  point  out  any  portion  of  his 
property  in  his  possession  he  may  think  proper ;  and  should  he 
point  out  land  to  be  levied  upon,  the  above  entry  of  'no  personal 
property'  may  be  omitted."  Code,  §4767. 

SEC.  412.  BANK  AND  OTHER  STOCK,  How  LEVIED  UPON. 
"When  any  constable  shall  have  any  execution  placed  in  his1 
hands  against  any  person  who  is  the  owner  of  any  shares  or 
stock  in  any  bank,  or  other  corporation,  or  joint-stock  company 
in  this  State,  he  shall,  on  the  application  of  the  plaintiff,  his 
agent,  or  attorney,  indorse  a  levy  on  said  execution  of  the  num- 
ber of  shares  belonging  to  the  defendant,  and  make  a  return  of 
the  same  to  the  sheriff  of  the  county  in  which  he  lives',  which 
said  sheriff  shall  proceed  to  advertise  and  sell  the  same  as  re- 
quired by  law.  When  the  constable  levies  an  execution  in  which 
the  sheriff  is  a  party,  or  in  which  he  is  interested,  he  may  pro- 
ceed to  sell  the  property  as  a  sheriff  is  authorized  to  do."  Code, 
§4768. 

SEC.  413.     FORM  OF  EXECUTION  FROM  JUSTICE  COURT. 

Georgia,   County. 

To  any  Lawful  Constable  of  said  County: 

You  are  hereby  commanded  of  the  goods  and  chattels,  lands 


SALES  BY  CONSTABLES  165 

and  tenements  of  Richard  Roe,  you  cause  to  be  made,  by  levy 

and  sale  thereof,  the  sum  of ( $ ) 

dollars  for  principal  debt,   .  .  .  .• dollars  and 

cents,  for  interest  to  judgment,  with  interest  upon  the  principal 

sum  at per  cent,  per  annum,  from , 

19....,  and dollars  and cents  for 

costs  of  suit,  and  thirty-five  (35c)  cents  for  this'  writ,  together 
with  all  future  costs,  which  John  Doe  recovered  before  me 

against  Richard  Roe  on  the day  of 19.  . .  . , 

in  and  at  the  Justice  Court  of  the District,  G.  M.,  of 

County,  and  have  you  the  said  several  sums  of 

money  at  the  next  Justice  Court  to  be  held  in  and  for  said  dis- 
trict, to  render  to  the  said  John  Doe,  and  have  you  then  and 

there  this  writ.     Given  under  my  hand  and  seal,  this'  the 

day  of ,19 

j.  P. 

SEC.  414.    LEVY. 
Georgia,   County. 

I  have  this  day  levied  the  within  fi.  fa.  upon  one  certain  bay 
horse  about  eight  years  old,  named  Ben,  of  medium  size,  as  the 
property  of  the  defendant,  Richard  Roe,  and  the  same  being  in 
his  possession  at  the  time  of  the  levy.  This ,  19.  ... 

L.  C. 

SEC.  415.     ADVERTISEMENT. 

Georgia, County. 

Will  be  sold  on  the  regular  monthly  court  day  of  the  Justice 

Court  of  the District,  G.  M'.,  of  said  County,  the 

same  being  on  the day  of ,  19 .  . .  . ,  at  the 

place  of  holding  said  court,  between  the  hours  of  10  A.  M.  and 
4  P.  M.,  one  certain  bay  horse,  about  eight  years  old,  of  medium 
size,  named  Ben,  said  property  being  levied  upon  as  the  property 
of  Richard  Roe,  the  defendant,  by  virtue  of  an  execution  issued 

from  the  Justice  Court  of  the District,  G.  M.,  of  said 

County,  in  favor  of  John  Doe  against  Richard  Roe,  defendant. 

This  the day  of 19 

..'. ,  L.  C. 

SEC.  416.     FORTHCOMING  BOND. 
Georgia, County. 

Know  all  men  by  these  presents  that  we,  Richard  Roe,  as1 
principal,  and  John  Smith,  as  security,  are  held  jointly  and 


166  SALES  BY  CONSTABLES 

severally  bound  unto ,  L.  C.,  in  the 

just  and  full  sum  of  one  hundred  ($100.00)  dollars,  subject  to 
the  condition  hereinafter  stated.     Signed  with  our  hands  and 

sealed  with  our  seals,  this  the day  of ,  19.  ... 

The  condition  of  the  above  obligation  is  as  follows : , 

L.  C.  of  s'aid  County,  has  this  day  levied  a  certain  fi.  fa.  issued 

from  the  Justice  Court  of  the District,  G.  M.,  of  said 

County,  at  the term,  19.  .  .  .,  in  favor  of  John 

Doe  against  Richard  Roe  upon  one  certain  bay  horse,  of  medium 
size,  about  eight  years  old,  named  Ben. 

Now,  if  the  said  Richard  Roe,  or  any  one  for  him,  shall  have 
and  produce  said  horse  at  the  time  and  place  of  sale,  and  then 

and  there  deliver  him  over  to  the  said ,  L.  C., 

then  this  bond  to  be  void,  otherwise  of  force. 

RICHARD  ROE,  Principal  (L.  S.) 
JOHN  SMITH,  Security      (L.  S.) 
Attested  and  approved  by  me : 
,  L.  C. 


PART  II. 

Civil  Forms. 


PART  II 
CIVIL  FORMS 


(NOTE:  The  use  of  the  mark  §  designates  sections, of  the  Code  of 
1910.  Where  P.  C.  is  also  used  the  Penal  Code  is  meant.  These  refer- 
ences are  equally  applicable  to  Park's  Annotated  Code  of  Georgia,  1914, 
as  the  section  numbers  therein  are  the  same  as  those  in  the  Code  of 
1910,  except  where  new  matter  was  inserted.) 


ABATEMENT  OF  ACTIONS. 


PLEAS  IN  ABATEMENT.     §§4331-4338,  5678. 


JOHN  DOE        ^ 
vs.  > 

RICHARD  ROE     ) 

And  now  comes  the  defendant  and  prays  judgment  of  the 
said  petition,  because  he  says — 

1.  That  at  the  time  of  the  filing  of  this  suit  the  said  plaintiff 
was  prosecuting,  and  is  still  prosecuting,  an  action  in  the  Supe- 
rior Court  of county  for  the  same  claim  and  cause  of 

action,  and  between  the  same  parties. 

2.  That  the  defendant  in  this  action  was  duly  served  in  the 
former  action,  and  the  same  is  now  pending  in  said  court  undis- 
posed of. 

3.  That  the  allegations  in  the  petition  still  pending  in  Supe- 
rior Court  as  aforesaid  refer  to  and  describe  substantially  the 
same  facts,  and  count  upon  the  same  claim  and  cause  of  action, 
as  sued  upon  in  the  present  action. 

4.  That  the  allegations'  of  said  former  suit  substantially  set 
forth  a  good  cause  of  action  against  this  defendant,  which  will 
authorize  a  recovery  against  him,  if  the  plaintiff  therein  shall 
make  out  his  case. 


170  ABATEMENT  OF  ACTIONS 

5.  That  the  said  Superior  Court  of county,  in  which 

said  former  action  was  brought,  has  jurisdiction  of  the  case 
heretofore  filed  therein  by  said  plaintiff  against  said  defendant, 
under  the  allegations  of  the  declaration  in  said  case. 

And  this  the  defendant  is  ready  to  verify.  Wherefore  he 
prays  judgment  of  the  said  petition  and  that  the  same  may  be 
quashed.  * 

Defendant's  Attorney. 


[NOTE;  The  above  form  can  be  readily  adapted  by  the  pleader  to  the 
cases  in  which  a  plea  of  abatement  is  proper,  such  as  former  recovery, 
misjoinder,  or  nonjoinder,  pleas  to  the  jurisdiction,  pleas  denying  ex- 
istence of  partnership,  objection  to  want  of  process,  premature  bringing 
of  suit,  suits  by  informers,  etc.] 


Allegations  in  paragraph  5  of  the  above  form  were  upheld  in  115/171 
(1)  (41  S.  E.  699).  Plea  in  abatement  is  dilatory  plea;  must  be 
filed  at  first  term  and  must  be  sworn  to.  120/530  (48  S.  E.  128). 
See  §§4727,  5641.  Error  to  strike  plea  at  hearing  in  vacation  before 
return  term.  145/111  (88  S.  E.  584). 


Lis  PENDENS.     §§4431,  5 GTS. 


(State  the  case.) 

And  now  comes  the  defendant  in  the  above  stated  case,  and 
for  plea  says : 

1.  That  on  the day  of ,  19.  .  .  .,  plaintiff 

filed  his  petition  returnable  to  the term,  19.  .  .  .,  of 

court,  in  said  State,  said  court  having  jurisdiction 

of  the  person  and  subject  matter  thereof. 

2.  That  the  action  in  the  last  court  aforesaid  is  between  the 
same  parties,  and  for  the  same  cause  of  action  as  that  alleged  in 
the  present  petition,  and  is  still  pending  therein,  undetermined. 

Wherefore,  the  defendant  says  that  the  plaintiff  has  no  right 
to  maintain  or  pros'ecute  the  present  action,  and  says  that  the 
same  should  abate,  and  that  the  same  be  dismissed  at  plaintiff's 
cost. 

And  this  the  defendant  is  ready  to  verify. 

Defendant's   Attorney. 


ACCORD  AND  SATISFACTION,  AND  RELEASE  171 

ACCORD  AND  SATISFACTION,  AND  RELEASE. 

§§4326-4330. 


PLEA  OF  ACCORD  AND  SATISFACTION. 


1  Complaint  on  note. 

vs.  >•  In    Superior  Court, 

J    Term,  19 

Comes  now  the  defendant  in  the  above  named  and  stated  case, 
and  for  plea  says' : 

That  previous  to  the  filing  of  this  suit  plaintiff  and  defendant 
entered  into  an  agreement  to  this  effect :  The  note  sued  on  was 
given  for  the  purchase  price  of  a  certain  pair  of  mules ;  that  on 

the day  of ,  19.  .  .  .,  the  plaintiff  agreed  to 

take  back  said  pair  of  mules  at  the  price  of  four  hundred 
($400.00)  dollars,  upon  the  condition  that  the  defendant  would 
pay  him  in  addition  thereto,  the  sum  of  one  hundred  ($100.00) 
dollars  in  cash,  which  amount  the  defendant  paid  to  the  said 

plaintiff  on  said day  of ,  19.  . .  .,  and 

returned  said  pair  of  mules,  and  in  this1  way  said  note  sued  on 
was  fully  settled  and  extinguished. 

All  of  which  defendant  stands  ready  to  show  and  verify,  and 
prays  to  be  dismissed  hence  with  his  reasonable  cost. 

Defendant's  Attorney. 

Or — And  now  comes  the  defendant  and  for  [further]  plea  in 
this  behalf  says'  that-the  claim  and  cause  of  action  alleged  in  the 
petition  has  been  fully  settled  and  extinguished,  for  that  the 

plaintiff  and  the  defendant,  on  the day  of , 

19.  .  .  .,  entered  in  an  agreement  subsequent  to  the  agreement 
sued  on,  the  intention  and  effect  of  which  was  to  satisfy  the 
former  one,  the  plaintiff  agreeing  to  accept  the  same  in  dis- 
charge and  satisfaction,  and  the  latter  agreement  has  been  ex- 
ecuted. A  copy  of  said  subsequent  agreement  is  hereto  attached. 

And  this  the  defendant  is  ready  to  verify,  wherefore  he  prays 
judgment,  if  the  said  plaintiff  ought  to  have  or  maintain  his 
aforesaid  action  thereof  against  him. 

Or — For  that  the  defendant  on  the day  of , 

19....,  made  and  executed  a  new  promise  to  the  plaintiff, 


172  ACCORD  AND  SATISFACTION,  AND  RELEASE. 

founded  new  consideration,  to  wit:     (State  what  the  considera- 
tion was),  a  copy  of  which  is  hereto  attached. 


PLEA  OF  RELEASE. 


JOHN  DOE  1  o   •,  j?      ™ 

Suit  for  Damages. 
vs.  L-r  °    c 


,  In   Superior  Court, 

N ORTHWESTERN  RAILROAD  rp 

I lerm,    19.  ... 

COMPANY  J 

Now  comes  the  defendant  in  the  above  named  and  stated  case, 
and  for  plea  and  ans*wer  says: 

That  on  the day  of ,  19 .  .  .  . ,  previous 

to  the  filing  of  the  present  suit,  the  plaintiff  entered  into  an 
agreement,  in  writing,  with  the  defendant,  through  its  proper 
officer  and  agent,  a  copy  of  which  agreement  is  hereto  attached, 
whereby  the  plaintiff  released  the  defendant  from  any  and  all 
liability  and  damages  for  the  alleged  injuries  sued  for,  upon 
the  condition  and  consideration  that  defendant  should  pay  to 

him  the  sum  of dollars;  and  that  in  pursuance 

of  said  agreement,  the  defendant  paid  said  amount  to  plaintiff, 
and  thereby  the  said  cause  of  action  sued  on  has1  been  fully 
settled  and  extinguished.  And  this  defendant  sets  up  this 
agreement  as  against  the  plaintiff's  suit,  and  prays  to  be  dis- 
missed hence  with  his  reasonable  cost. 

Defendant's  Attorney. 


(NOTE:  Under  our  procedure  the  petition  of  the  plaintiff  must  be 
answered,  and  it  is  usual  to  file  a  plea  of  this  kind  at  the  end  of  it;  in 
such  cases  the  plea  can  be  marked  as  a  numbered  paragraph,  and  begun 
with:  "And  for  further  plea  and  answer,  defendant  says.") 


Consideration.  Plea  not  averring  that  plaintiffs  obtained  any  advantage, 
or  that  defendant  gave  any  new  consideration  or  additional  security 
or  executed  the  agreement  by  paying  the  amount  agreed  upon,  was 
insufficient.  81/808  (10  S.  E.  390). 

"Estopped"  not  used  in  one  place  in  plea  here  did  not  make  plea  in- 
sufficient. 74/717. 

Facts  in  plea  may  be  sufficient  to  set  up  accord  and  satisfaction,  though, 
technically,  plea  would  not  be  called  one  of  accord  and  satisfaction. 
•  35/216,  218;  74/717. 


ACCOUNTS  173 

Terms.  Plea  which  does  not  set  up  either  the  terms  of  the  settlement 
or  its  agreed  result  as  to  discharge  or  satisfaction  sets  forth  no 
defense.  94/649  (3)  (21  S.  E.  901).  Plea  must  allege  facts  sufficient 
to  put  plaintiff  upon  notice  of  the  exact  terms  of  the  agreement, 
and  when  and  with  whom  it  was  entered  into.  108/211  (33  S.  E. 
857) ;  131/237  (62  S.  E.  81).  Unless  plea  sets  out  time  and  parties, 
and  terms  of  settlement,  so  that  it  can  be  readily  understood,  it 
ought  to  be  stricken  on  demurrer.  137/250  (73  S.  E.  400). 

Uncertainty  of  plea  here  made  it  impossible  to  say  whether  pleader 
meant  to  plead  accord  and  satisfaction.  80/534  (7  S.  E'.  84). 


ACCOUNTS. 


SUMMONS  IN  SUIT  ON  ACCOUNT  IN  JUSTICE  COURT. 


Georgia, County. 

JOHN  DOE       )    . 

J»  In  the  Justice  Court  of  the District 

RICHARD  ROE  CL  M.,  of County. 

To  any  Lawful  Constable  of  said  County: 

The  defendant,  Richard  Roe,  of  said  district  and  county,  is 
hereby  commanded  to  be  and  appear  at  the  next  term  of  the 
Justice  Court  to  be  held  in  and  for  said  district,  at  the  usual 
place  of  holding  said  court  at  the  court-house  in  the  city  of 

,  on  the day  of ,  19 .  . .  . , 

at  ten  o'clock,  A.  M.,  to  ans"wer  the  complaint  of  John  Doe  in 

an  action  upon  an  account  for dollars, 

a  copy  of  which  said  account  is  hereto  attached.  Herein  fail 
not. - 

Witness  my  hand  and  official  signature,  this  the day 

of ,19 

J.  P.' 


(NOTE:     To  the  above  summons  attach  a  copy  of  the  account.) 


AFFIDAVIT  FOR  PROOF  OF  ACCOUNT  WHICH  MUST  BE 
ATTACHED  TO  THE  ACCOUNT. 


Georgia, County. 

In  person  appeared  before  the  undersigned  attesting  officer, 
John  Doe,  who,  being  duly  sworn,  on  oath  says  that  the  above 


174  ACCOUNTS 

and  foregoing  account   against  Richard  Roe  for  the   sum  of 

dollars  is  just  and  true  as  it  stands  stated, 

and  is  unpaid. 

JOHN  DOE. 

Sworn  to  and  subscribed  before  me,  this 
the day  of ,  19 


COUNTER  AFFIDAVIT. 


(NOTE:  If  the  defendant  wishes  to  defend  this  suit,  he  must  appear 
at  the  court  at  the  time  fixed  in  the  summons  for  his  appearance,  and 
have  his  name  marked  on  the  docket,  or  his  counsel,  and  must  also  file 
a  counter  affidavit,  the  form  of  which  may  be  as  follows:) 

Georgia, County. 


JOHN  DOE      ^   - 

I  In  the  Justice  Court  of  the District, 

RICHARD  ROE    J       <>.  M.,  of County. 

'  Personally  came  before  the  undersigned  attesting  officer, 
Richard  Roe,  who,  being  duly  sworn,  on  oath  says  that  he  is 
the  defendant  in  the  above  named  and  stated  case,  and  files  this 
his  counter  affidavit  to  the  account  therein  sued  on,  and  admits 
that  he  is  indebted  for  a  portion  of  the  articles  sued  for,  to  wit, 

all  of  the  same  except  the  item  of dollars,  for.  ....'., 

and  the  item  of dollars,  for ,  and  this  de- 
fendant denies  said  account  as  to  that  portion  of  the  same, 

amounting  in  the  aggregate  to dollars. 

RICHARD  ROE. 

Sworn  to  and  subscribed  before  me,  this 
the day  of ,  19 .... 


SUMMONS  IN  SUIT  ON  NOTE  IN  JUSTICE  COURT. 


Georgia, County. 

JOHN  DOE       ]  ...  ^.      . 

L  feint  on  note  in  the District, 

RICHARD  ROE    J       G'  M'>  of Comit^ 

To  any  Lawful  Constable  of  said  County : 

The  defendant,  Richard  Roe,  of  said  district  and  county,  is 
hereby  commanded  to  be  and  appear  at  the  usual  place  of  hold- 


ACCOUNTS  175 

ing  the  Justice  Court  at  the  court-house  in  the  city  of . , 

on  the day  of ,  19.  . .  .,  at  ten  o'clock,  A.  M., 

then  and  there  to  answer  the  complaint  of  John  Doe  in  a  suit 

upon  a  promissory  note  for dollars  and  a  claim  for 

attorney's  fees  thereon,  a  copy  of  which  said  note  and  claim  is 
hereto  attached.     Herein  fail  not. 

Witness  my  hand  and  official  signature,  this  the day 

of..  ,  19.. 


J.  P. 


COPY  OF 


$ ,191... 

On ,  19 .  .  .  . ,  I  promise  to  pay  to  the  order 

of  John  Doe, dollars,  for  value  received,  with 

interest  at  8  per  cent,  per  annum,  from  date. 

And  each  of  us,  whether  maker,  security  or  endorser  on  this 
note,  hereby  waives  and  renounces  for  himself  and  family,  any 
and  all  homestead  and  exemption  rights  to  which  he  or  they 
may,  in  any  event  be  entitled  under  any  provisions  of  the  con- 
stitution or  laws,  state  or  federal;  and  each  further  waives 
demand,  protest  and  notice  of  demand,  protest  and  non-payment. 
And  in  case  this  note  has  to  be  collected  by  suit,  or  placed  in  the 
hands  of  an  attorney  for  collection,  I  agree  to  pay  all  costs  of 
collection,  including  ten  per  cent,  attorney's  fees. 

Witness  my  hand  and  seal. 

KICHAED  ROE.  (L.  S.) 

The  plaintiff,  John  Doe,  being  the  -holder  of  said  note,  claims 
the  attorney's  fees  as  expressed  therein  by  reason  of  the  fact 

that  on  the day  of ,  19 .  . .  . ,  he  served  the 

defendant,  Richard  Roe,  personally,  with  a  notice  in  writing 
that  unless  said  note  was  paid  on  or  before  the  return  day  of 

said  Justice  Court  of  the District,  G.  M.,  of 

county,  that  he  would  so  claim  said  attorney's  fees. 


NOTICE   TO   DEFENDANT   TO  RECOVER  ATTORNEY'S   FEES  ON 

NOTE.     §4252. 


Georgia, County. 

To  Richard  Roe: 

You  are  hereby  notified  that  a  certain  purchase-money  note 


176  ACCOUNTS 

made  by  you  to  me,  dated ,  19 .  .  .  . ,  for  the  sum 

of dollars,  with  interest  from  date  at  8  per  cent., 

and  which  includes  a  provision  for  the  payment  by  you  of 
attorney's  fees  in  the  event  that  said  note  would  be  collected  by 
suit  or  placed  in  the  hands  of  an  attorney  for  collection,  is  past 
due  and  unpaid,  and  it  is  my  intention  to  bring  suit  thereon  in 

the  Justice  Court  of  the District,  G.  M.,  of 

county,  to  the term,  19.  .  .  .,  of  said  court  on  said 

note,  and  that  unless  said  note  is  paid  on  or  before  the  return 

day  of -said  court,  which   return  day  is  on  the day 

of ,  19.  .  .  .,  then  in  such  case  I  will  claim  the 

attorney's  fees  as  expressed  therein.     This ,  19.  ... 

JOHN  DOE. 


SUIT  ON  ACCOUNT  IN  CITY  COURT  OK.  SUPERIOR  COURT. 


Georgia, County. 

To  the  Superior  Court  of  said  County: 

The  petition  of  John  Doe,  as  plaintiff,  against  Richard  Roe, 
as  defendant,  alleges: 

1st.     That  Richard  Roe  is  a  resident  of  said  county. 

2nd.    That  defendant  is  indebted  to  plaintiff  in  the  just  and 

full  sum  of dollars,  besides  interest,  upon  an 

account  which  is  now  due,  a  copy  of  which  is  hereto  attached, 
marked  "Exhibit  A,"  and  made  a  part  of  this  petition. 

3rd.  That  defendant  fails  and  refuses  to  pay  said  sum  or 
any  part  thereof. 

Wherefore,  plaintiff  brings  suit,  and  prays  that  process  may 
issue,  requiring  defendant  to  be  and  appear  at  the  next  term 
of Superior  Court,  to  answer  petitioner's  complaint. 

Plaintiff's  Attorney. 

(To  this  petition  attach  a  copy  of  the  account.  An  account  in  the 
superior  court  can  not  be  proved  by  an  affidavit,  as  in  a  justice  court.) 


COMPLAINT  IN  THE  SUPERIOR  COURT  OR  CITY  COURT  ON 
PROMISSORY  NOTE  PROVIDING  FOR  ATTORNEY'S  FEES. 


Georgia, County. 

To  the  Superior  Court  of  said  County: 

The  petition  of  John  Doe,  as'  plaintiff,  against  Richard  Roe, 
as  defendant,  alleges: 


ACCOUNTS  177 

1st.     That  John  Doe  is  a  resident  of  said  county. 

2nd.  That  on  the day  of ,  19 ,  the 

defendant  made  to  plaintiff  a  certain  promissory  note  for  the 

sum  of dollars,  with  interest  from  date  at 

per  cent,  per  annum,  which  said  note  contained  a  provision  that 
if  said  not©  was  collected  by  suit  or  placed  in  the  hands  of  an 

attorney  for  collection,  the  defendant  would  pay per  cent. 

attorney's  fees,  together  with  s'aid  principal  and  interest,  a  copy 
of  which  said  note  is  hereto  attached,  and  marked  "Exhibit  A." 

3rd.  That  on  the day  of ,  19.  . .  .,  plaintiff 

served  defendant  personally  with  a  notice  in  writing  that  it  was 

his  intention  to  bring  suit  on  said  note  to  the term, 

19.  .  .  .,  of superior  court,  and  that  unless  the  defendant 

paid  said  note  on  or  before  the  return  day  of  said  court,  which 

was  on  the day  of ,  19 .  .  .  . ,  that  in  such 

event  he  would  claim  the  attorney's  fees  as1  expressed  in  said 
note,  a  copy  of  which  said  notice  is  hereto  attached,  and  marked 
"Exhibit  B,"  and  that  the  defendant  has  failed  and  refused  to 
pay  said  note  or  any  part  thereof. 

Wherefore,  plaintiff  prays  that  process  may  issue  requiring 
the  defendant  to  be  and  appear  at  the  next  term  of  the  superior 
court  of  said  county  to  answer  your  petitioner's  complaint. 

Plaintiff's  Attorney. 

Georgia, County. 

Personally  came  before  the  undersigned  attesting  officer, 
John  Doe,  plaintiff  in  petition  hereinbefore  set  out,  and  who, 
being  duly  sworn,  on  oath  says  that  the  facts  stated  in  said 
petition  are  true,  to  the  best  of  his  knowledge  and  belief. 

JOHN  DOE. 

Sworn  to  and  subscribed  before  me,  this 
the day  of ,  19.  ... 


Clerk,  Superior  Court. 


"EXHIBIT  A." 


$ ,  19.... 

,  19 .  .  .  . ,  I  promise  to  pay  to  the  order 

of , dollars,  for  value 

received,  with  interest  at per  cent,  per  annum,  from  date, 

until  paid.    And  each  of  us,  whether  maker,  security  or  endorser 


178  ACCOUNTS 

on  this  note,  hereby  waives  and  renounces,  for  himself  and 
family,  any  and  all  homestead  and  exemption  rights  to  which 
he  or  they  may,  in  any  event  be  entitled,  under  any  provisions 
of  the  constitution  or  laws,  state  or  federal;  and  each  further 
waives  demand,  protest  and  notice  of  demand,  protest  and  non- 
payment. And  in  case  this  note  has  to  be  collected  by  stiit,  or 
placed  in  the  hands  of  an  attorney  for  collection,  I  agree  to  pay 
all  costs  of  collection,  including  ten  per  cent,  attorney's  fees. 
Witness  my  hand  and  seal. 

RICHARD  ROE  (L.  S.) 


(NOTE:  It  has  been  the  practice  where  a  note  is  sued  upon,  with 
notice  given  for  attorney's  fees,  to  file  simply  general  denial.  Where 
there  is  no  affidavit  to  the  petition,  this  can  be  done,  and  it  carries  the 
case  over  if  it  is  regularly  placed  on  the  trial  calendar.  By  making  the 
affidavit  as  is  made  to  this  petition,  any  answer  or  plea  the  defendant 
makes,  must  be  sworn  to.  See  Code,  §5543. 

As  to  proof  of  the  service  of  the  notice  given  of  intention  to  sue  and 
proof  of  the  service  of  the  same  by  manifold  copy,  see  Savannah  Bank- 
ing and  Trust  Company  vs.  Purvis,  6  App.  275  (6)  (65  S.  E.  35),  which 
reads: 

"Where  notices  are  executed  in  duplicate  or  otherwise  in  manifold 
and  one  or  more  of  the  copies  are  served  while  another  is  retained,  the 
copy  so  retained  is  admissible  as  primary  evidence  upon  an  issue  as  to 
the  service  of  the  notice  notwithstanding  the  production  of  the  copies 
served  has  not  been  called  for  by  a  notice  to  produce  or  otherwise.") 


MANIFOLD  COPY  OF  NOTICE  FOR  ATTORNEY'S  FEES.     §4252. 


"EXHIBIT  B." 

Georgia, County. 

To  Richard  Roe: 

You  are  hereby  notified  that  I  am  the  holder  of  the  note 

made  by  you  to  me  on  the ....  day  of ,  19 .  .  .  . , 

for  the  sum  of dollars,  with  interest  from  date  at 

per  cent,  per  annum,  wherein  there  is  a  provision  that 

if  said  note  has  to  be  collected  by  suit,  or  placed  in  the  hands' 
of  an  attorney  for  collection,  you  are  obligated  to  pay  a  further 

sum  of per  cent,  as  attorney's  fees,  said  note  being  due 

,  19 .  .  .  . ,  and  it  is  my  intention  to  bring  suit  on 

said  note  to  the ,  term,  19.  .  .  .,  of superior 

court,  and  that  unless  you  pay  the  said  note  on  or  before  the 
return  day  of  said  tenn  of  said  court,  which  is  on  the day 


ACCOUNTS  179 

of ,  19.  .  .  .,  that  I  will  claim  in  said  suit  the 

attorney's  fees  as  expressed  in  said  note.     This day 

of ,19.... 

JOHN  DOE. 


Amendments.  All  affidavits  that  are  the  foundation  of  legal  proceedings, 
and  all  counter-affidavits,  are  amendable.  See  §5706.  Unsworn  plea 
amendable.  112/138  (37  S.  E.  104).  Contract  in  writing  explana- 
tory of  items  of  account  may  be  set  up  by  amendment.  125/148 
(54  S.  E.  193) ;  13  App.  25,  26  (78  S.  E.  688).  When  bill  of  particu- 
lars is  improperly  headed,  defect  is  amendable.  15  App.  280  (1) 
(82  S.  E.  918).  Amendment  showing  in  detail  how  goods  were  sold 
to  defendants  was  mere  elaboration  of  petition,  and  was  properly 
allowed.  18  App.  416  (2)  (89  S.  E'.  491). 

Attorney's  fees.  Notice  of  intention  to  sue,  required  by  §4252  as  condi- 
tion precedent  to  recovery  of  attorney's  fees,  must  disclose  holder 
of  note  in  whose  behalf  payment  is  demanded.  7  App.  645  (3)  (67 
S.  E.  896) ;  14  App.  300  (80  S.  E.  723) ;  17  App.  517  (87  S.  E.  770). 
Notice  naming  term  of  court  preceding  term  to  which  suit  is  re- 
turnable, not  sufficient.  15  App.  133  (82  S.  E.  772).  Notices  were 
held  sufficient  in  the  following  cases:  128/414  (57  S.  E.  704); 
141/578  (81  S.  E'.  892) ;  13  App.  309  (79  S.  E.  165) ;  14  App.  80  (80 
S.  E.  301) ;  17  App.  463  (87  S.  E.  701).  Where  petition  alleges  that 
notice  has  been  given,  it  is  unnecessary  to  attach  to  petition  copy 
of  such  notice.  140/603  (3)  (79  S.  E.  540).  Allegation  that  plain- 
tiff had  caused  written  notice  to  be  served,  together  with  prayer 
for  recovery  of  attorney's  fees,  was  sufficient  to  show  that  notice 
based  on  section  4252  was  notice  of  intention  to  sue  on  note  and  seek 
to  recover  attorney's  fees  according  to  its  terms.  140/653,  654  (4) 
(79  S.  E.  539).  Fact  that  carbon  copy  of  notice  served  differed  in 
certain  immaterial  respects  from  notice  actually  served  did  not 
render  such  copy  objectionable  as  immaterial  and  irrelevant.  141/ 
840  (82  S.  E.  246).  In  absence  of  demurrer,  statement  in  petition 
that  defendants  had  been  notified  of  suit  in  writing  ten  days  before 
filing  same,  in  connection  with  allegation  that  defendants  in  their 
note,  copy  of  which  was  attached  to  petition,  promised  to  pay 
attorney's  fees,  was  sufficient  basis  for  recovery  of  such  fees.  13 
App.  119  (2)  (78  S.  E.  862).  Allegation  that  in  terms  of  law  peti- 
tioner gave  notice  of  intention  to  sue,  and  that  defendant  failed  to 
pay,  was  sufficient,  in  absence  of  special  demurrer,  to  authorize 
proof  authorizing  recovery  of  attorney's  fees.  14  App.  293  (2) 
(80  S.  E.  699). 

Bill  of  particulars.  Superior  Court  rule  10  (§6269)  is  superseded  by 
the  pleading  act  of  1893  (§5628).  144/646  (2)  (87  S.  E.  915). 

"Cause  of  action  sued  on"  may  be  contained  in  summons  itself  or  copy 
attached.  118/411  (45  S.  E.  306). 

Certainty.  Some  degree  of  certainty  is  required.  17  App.  744  (88 
S.  E.  403). 

Payment.  Plea  that  account  was  paid  by  decedent  was  properly  stricken 
where  it  failed  to  allege  when  and  to  whom  payment  was  made, 
and  averred  that  defendant  could  not  make  such  allegation,  because 
of  want  of  sufficient  information,  except  that  decedent  paid  his 
board  monthly,  as  was  his  habit,  and  that  he  had  ample  money  to 
pay  his  debts.  14  App.  298  (80  S.  E.  698). 


180  ADMINISTRATORS  AND  EXECUTORS 

Summons  which  requires  defendant  to  answer  suit  upon  account  is  not 
so  defective  as  to  be  subject  to  dismissal  merely  because  it  also 
requires  defendant  to  answer  "plaintiff's  demand  to  establish  a  lien 
upon  real  estate."  15  App.  455  (1)  (83  S.  E'.  896). 

Verified  account  requires  verified  plea.  10  App.  278  (73  S.  E.  350).  See 
§4728.  Denial  not  under  oath,  as  to  account  sworn  to,  not  defense. 
14  App.  218  (80  S.  E.  680). 


ADMINISTRATORS  AND  EXECUTORS.     §§3935-4105. 


I.     APPOINTMENT  AND  QUALIFICATION:     LETTERS. 
II.     BONDS. 

III.  SALES  BY. 

IV.  ADMINISTRATION    AND    DISTRIBUTION    OF    ESTATES — 

PAYMENT  OF  DEBTS — YEAR'S  SUPPORT. 
V.     RETURNS,  INVENTORY,  APPRAISEMENT,  ACCOUNT  AND 

COMMISSION. 

VI.     SUITS,  BY  OR  AGAINST. 
VII.     DISMISSION,  RESIGNATION  AND  REMOVAL. 
VIII.     WILLS.     (See  title  Wills.) 

IX.     FOREIGN  EXECUTORS  AND  ADMINISTRATORS. 


I.— APPOINTMENT  AND  QUALIFICATION: 
LETTERS. 


TEMPORARY  ADMINISTRATION.     §§3935-3938. 


APPLICATION  FOR  TEMPORARY  LETTERS  OF  ADMINISTRATION. 

§3935. 


Georgia, County. 

To ,  Ordinary  of  said  County : 

The  petition  of ,  a  citizen  of  the  United  States, 

residing  in  said  State,  shows  that departed  this 

life  on  or  about  the day  of ,  19 .  .  .  . ,  a  resident 

of  said  county,  intestate,  leaving  an  estate  of  real  and  personal 

property  of  the  value  of dollars;  the  realty  worth 

about dollars ;  and  the  personalty  worth  about 

dollars;  the  said  estate  is  unrepresented,  and  it  is 


ADMINISTRATORS  AND  EXECUTORS  181 

necessary  for  the  purpose  of  collecting  and  taking  care  of  the 
effects  of  said  deceased  that  temporary  letters  of  administration 
should  be  granted  thereon;  that  petitioner  is'  entitled  under  the 
law  to  be  appointed  administrator  because  he  is  a  son  of  de- 
ceased (or  state  other  ground). 

Wherefore,  petitioner  prays  an  order  appointing  petitioner 
temporary  administrat.  .  .  .on  said  estate. 


Residing  at, 


,  ORDER  OF  APPOINTMENT. 


COURT  OF  ORDINARY, County. 

At  Chambers, ,  19 .... 

The  petition  of for  temporary  letters  of 

administration  on  the  estate  of ,  deceased, 

having  been  duly  filed,  and  it  appearing  that  said  deceased  died 
a  resident  of  said  county,  intestate;  that  said  applicant  is  a 
citizen  of  this  State,  and  lawfully  qualified  for  said  adminis- 
tration, and  that  it  is  necessary  that  such  letters  should  issue 
for  the  purpose  of  collecting  and  taking  care  of  the  effects  of 
the  said  deceased  until  permanent  letters  are  granted ;  it  is, 

therefore,  ordered  that  the  said be,  and 

is,  hereby  appointed  temporary  administrat.  ...  on  said  estate, 

and  that  letters  as  such  issue  to upon 

giving  bond  and  security  in  the  sum  of dollars, 

and  taking  the  oath  as  the  law  requires. 

,  Ordinary. 


OATH  OF  TEMPORARY  ADMINISTRATOR. 


Georgia, County. 

I, ,  do  solemnly  swear  that  I  will  well  and 

truly  perform  the  duties  of  temporary  administrator  upon  the 

estate  of ,  deceased,  to  the  best  of  my  ability ; 

so  help  me  God. 

Sworn  to  and  subscribed  before  me  this day 

of ,  19 

Ordinary. 


182  ADMINISTRATORS  AND  EXECUTORS 

BOND  OF  TEMPORARY  ADMINISTRATOR.     §3936. 


Georgia, County. 

Know  all  men  by  these  presents,  that  we, , 

as  principal,  and . '. ,  as  security,  are  held 

and  firmly  bound  unto ,  the  Ordinary  of 

said  county  and  his  successors  in  office,  in  the  just  and  full  sum 

of  $ ,  subject  to  the  conditions  hereinafter  set  out, 

and  as  against  this  bond  and  any  liability  incurred  thereunder, 
each  of  us  for  himself  and  family  waives  and  renounces  all 
rights  of  homestead  and  exemption  that  he  may  have  under  or 
by  virtue  of  the  Constitution  and  laws  of  this  State. 

Signed  with  our  hands  and  sealed  with  our  seals,  this 

day  of ,19 

The  condition  of  the  above  obligation  is  as  follows : 

has  this  day  been  appointed  temporary  administrator  upon  the 

estate  of ,  late  of  said  county,  deceased.  Now 

if  the  said shall  collect  and  take  care  of  the 

effects  of  the  said ,  deceased,  and  turn  the 

same  over  to  the  permanent  administrator  when  one  is  appointed, 
and  in  every  way  truly  and  faithfully  discharge  his  duties  as 
such  temporary  administrator  according  to  law,  then  in  such 
case  this1  bond  to  be  void,  otherwise  of  full  force  and  effect. 

....' :....(L.  S.) 

Principal. 

....(L.  S.) 

Security. 

Executed  in  the  presence  of  and  approved 
by: 


Ordinary. 


TEMPORARY  LETTERS  OF  ADMINISTRATION. 


Georgia, County. 

By ,  Ordinary  for  said  county. 

Whereas ,  late  of  said  county,  deceased,  died 

intestate,  having  whilst lived  and  at  the  time  of 

death,  considerable  property  within  the  said  State ;  and  it  being 


ADMINISTRATORS  AND  EXECUTORS  183 

right  and  necessary  that  the  property  of  the  said  deceased  should 
be  collected  and  taken  care  of,  until  a  citation  in  due  form  of 
law  can  issue,  and  it  be  ascertained  to  whom  the  right  of  admin- 
istration doth  appertain. 

I  do,  therefore,  hereby  constitute  and  appoint 

with  full  power,  by  the  tenor  of  these  presents,  to  collect  and 
take  care  of  the  moneys,  goods,  chattels  and  other  property  of 

the  said deceased,  and  the  same  safely  to  keep 

until  it  can  be  ascertained  to  whom  the  right  of  administration 

doth  belong ;  and  thereupon  the  said immediately 

to  deliver  up  the  said  moneys,  goods,  chattels  and  other  property 
to  whomsoever  the  court  shall  commit  the  administration  of  the 
estate  of  said  deceased,  agreeably  to  law. 

In  testimony  whereof,  I  have  hereunto  affixed  my  signature 

as  ordinary  for  said  county,  and  seal  of  office,  this day 

of ,  19 

,  Ordinary. 


ORDER  APPOINTING  TEMPORARY  ADMINISTRATOR  PENDING 
APPEAL  ON  PROPOUNDED  WILL.     §3938. 


County  Court  of  Ordinary. 

Term,  19 

The  court  of  ordinary  of  said  county  having,  at  this  regular 

term,  in  the  matter  of  the  will  of ,  propounded 

by and  caveated  by : ,  refused 

to  admit  said  will  to  probate;  and  appeal  having  been  taken 

from  the  decision  of  the  court  to  the  Superior  Court  of 

county,  and  the  circumstances  of  the  case  requiring  a  temporary 

administrator  on  the  estate  of until  such  appeal 

is  disposed  of,  and ,  one  of  the  next  of  kin  and 

a  suitable  person,  having  filed  his  petition  praying  the  court 
that  he  be  appointed  such  temporary  administrator,  it  is  ordered 
that  he  be,  and  is,  hereby  vested  with  such  administration,  upon 

his  giving  bond  and  security  in  the  sum  of dollars, 

said to  be  his  security,  and  that  letters  temporary 

issue  to  him,  after  giving  such  bond  and  security,  and  taking 
the  usual  oath. 

,  Ordinary. 


184  ADMINISTRATORS  AND  EXECUTORS 

DE  BONIS 


APPLICATION  FOR  ADMINISTRATION  DE  BONIS  NON.     §3939. 


Georgia, County. 

To ,  Ordinary  of  said  County : 

The  petition  of ,  of  said  State,  shows  that 

,  late  a  resident  of  s'aid  county,  died  on  the 

day  of ,  19.  .  .  .,  intestate,  leaving  in  said 

State  real  and  personal  estate  worth dollars ;  that 

one was  by  the  court  of  ordinary  of  said  county 

appointed  administrator  on  the  estate  of on 

the day  of ,  19.  .  .  .,  and  died  intestate,  leaving 

a  part  of  the  estate  of  said unadministered.  Peti- 
tioner alleges  that  he  is  the  next  of  kin  of  said 

and,  as  such,  prays'  that  a  citation  may  issue,  requiring  all  per- 
sons interested  to  show  cause  at  the  next term  of  the 

court  of  ordinary  for  said  county  why  letters  of  administration 
should  not  be  granted  to  your  petitioner  upon  the  unadministered 
estate  of  said  

This day  of ,  19 

,  Petitioner. 


ORDER  FOR  CITATION  TO  ISSUE. 


Court  of  Ordinary, Countv,  Georgia. 

;...,    19 

The  above  petition  of to  administer  the  estate 

of unadministered  by  his   late   administrator 

being  read  and  considered,  ordered  that  the 

citation  issue  as  prayed  for. 

,  Ordinary. 


CITATION  FOR  ADMINISTRATION  DE  BONIS  NON.     §3939. 


Georgia,   County. 

To  all  whom  it  may  concern : 

of  said  State,  having  applied  to  me  for 

letters  of  administration  de  bonis  non  on  the  estate  of , 

of  said  county,  this  is  to  cite  all  and  singular  the  heirs  and 
creditors    of to  be  and  appear  at  the term, 


ADMINISTRATORS  AND  EXECUTORS  185 

19.  . .  ..,  of  said  court,  and  show  caus'e,  if  any  they  can,  why 
letters  of  administration  de  bonis  non  should  not  be  granted  on 
the  estate  of  said 

Witness  my  official  signature. 

Ordinary  of County. 


LETTERS  OF  ADMINISTRATION  DE  BONIS 


Georgia, County. 

By ,  Ordinary  of  said  county. 

of  said  county,  in  which died 

resident,  and having  been  duly  appointed  by 

the  court  of  ordinary,  administrat ....  on  said 

estate,  which  said    administrat ....  has'  also  departed  this  life 

before  finishing  the  administration  of estate, 

and   said   court  having  at   a   regular   term   thereof   appointed 

administrat ....    de  bonis  non,  on  condition 

of giving  bond  and  security  named  in  said 

order  and  taking  the  usual  oath;  and  said having 

fully  complied  with  the  directions  of  the  court: 

This  is  to  show  that  said is  fully  empowered 

and  required  by  law  to  do  all  and  singular  the  duties  of  admin- 
istrat. .  .  .  de  bonis  non  of  the  estate  of deceased ; 

to  administer,  according  to  law,  the  estate  remaining  unadmin- 

istered  by  the  former  administrat.  ...   of and 

in  all  respects  is  authorized  to  discharge  the  duties  and  exercise 
the  power  given  by  law  to  an  administrator  de  bonis  non  of  the 
estate  of 

\Yitness  my  hand  as1  ordinary,  and  seal  of  said  court,  this 

day  of ,  19.  ... 

,  Ordinary. 


LETTERS  or  ADMINISTRATION  DE  BONIS  NON  WITH  WILL 
ANNEXED.    §3940. 


Court  of  Ordinary, County,  Georgia. 

Term,  19 

By  the  Court  of  Ordinary  for  said  County. 

To  all  to  whom  these  presents  shall  come,  Greeting: 

Know  ye,  that  on  the day  of ,  19.  . . ., 

after  petition  and  proper  citation, was  appointed 


186  ADMINISTRATORS  AND  EXECUTORS 

administrator  de  bonis  non  cum  testamento  annexe  of  the  estate 

of . .  . . ,  late  of  said  county,  deceased,  and  that  on 

the day  of ,  19 .  . .  . ,  the  said 

departed  this  life,  intestate,  leaving  said  estate  partially  admin- 
istered, and  that by  petition  to  this  court,  and 

after  proper  citation  and  publication  of  the  same,  applied  to  this 
court  for  letters  of  administration  de  bonis  non  cum  testamento 
annexe,  and  that  after  due  and  proper  proceeding,  the  said 

was  appointed  as  such  administrator,   and 

then  and  thereupon,  having  taken  the  proper  oath  and  having 
filed  his  bond  as  required  by  the  order  of  appointment,  now  by 
virtue  of  these  presents,  the  said is  legally  author- 
ized to  administer  the  estate  of  the  said , 

deceased,  remaining  unadministered  according  to  the  tenor  and 

effect  of  said  will  and  testament  of  said , 

deceased,  a  copy  of  which  will  is  hereto  attached,  and  according 
to  law  and  fully  and  truly  to  discharge  all  the  duties  of  such 
administrator,  and  to  render  a  true  and  correct  account  to  this 
court  of  his  acts  and  doings  yearly  and  every  year  until  his 
administration  is  fully  complete. 

Witness  my  hand  and  the  official  seal  of  said  court,  this.  . .  . 
day  of ,19 

(SEAL)  Ordinary  of County. 


APPLICATION  FOR  ADMINISTRATION,  WITH  WILL  ANNEXED. 
§§3940,  3941. 


Georgia, County. 

To ,  Ordinary  of  said  County : 

The  petition  of of  said  State,  shows  that 

,  late  a  resident  of  said  county,  died  on  the 

day  of ,  19 .  . .  .,  owning  real  and  personal  estate 

to  the  value  of dollars,  and  testate;  that  the  will 

of  said was  duly  proved  and  admitted  to  record 

in.  solemn  form  at  the term,  19.  . .  .,  in  said  county 

by  the  Court  of  Ordinary,  and  one was  appointed 

executor  of  said  will,  and  continued  as  such  executor  until  the 

day  of ,  19 .  . .  . ,  when  he  died  intestate, 

leaving  the  will  unexecuted;  that  your  petitioner  is'  a  son  of 

,  deceased,  and  is  entitled  to  administration, 

with  the  will  annexed^  of  the  estate  of and  there- 


ADMINISTRATORS  AND  EXECUTORS  187 

fore  prays  a  citation  to  issue  in  his  behalf,  calling  upon  all 
persons  interested  to  show  cause  why  administration,  with  the 

will  annexed,  on  the  estate  of should  not  be 

granted  as  prayed  for,  at  the term,  19.  .  .  .,  of  the 

said  court  of  ordinary. 

,  Petitioner. 


[NOTE:  If  the  executor  named  in  the  will  did  not  appear  to  qualify 
and  execute  the  same,  that  fact  should  be  alleged  in  lieu  of  what  is 
alleged  in  the  above  form.] 


ORDER  FOR  CITATION  TO  ISSUE. 


Court  of  Ordinary, County,  Georgia. 

Term,  19 

The  above  and  foregoing  petition  of for 

letters  of  administration  de  bonis  non  with  the  will  annexed,  on 

the  estate  of ,  late  of county,  deceased, 

coming  on  for  hearing,   and  having  been  considered,  ordered 
that  citation  issue  as  prayed  for. 

Ordinary. 


CITATION  FOR  ADMINISTRATION,  WITH  WILL  ANNEXED. 


Georgia, County. 

To  all  whom  it  may  concern : 

of  said  State,  having  applied  to  me  for 

letters  of  administration  de  bonis  non  with  will  annxed,  on  the 

estate  of ,  late  of  said  county,  deceased,  this  is  to 

cite  all  and  singular  the  creditors  and  next  of  kin  of  said 

to  be  and  appear  at term,  19.  .  .  .,  of  the  court  of 

ordinary  of  s'aid  county,  and  show  cause,  if  any  they  can,  why 
letters  of  administration  de  bonis  non,  with  the  will  annexed, 

should  not  be  granted  to  said on  the  estate 

of 

Witness  my  official  signature  this day  of ,  19.  .. 

,,.,..,.., , ,  Ordinary. 


188  ADMINISTRATORS  AND  EXECUTORS 

LETTERS  OF  ADMINISTRATION,  WITH  WILL  ANNEXED.     §3940. 


Georgia, County. 

By  the  Court  of  Ordinary  for  said  County. 
To  all  whom  these  presents  shall  come — Greeting: 

Know  ye,  that  on  the day  of ,  in  the  year  of 

our  Lord  19.  .  .  .,  the  last  will  and  testament  of , 

late  of  said  county,  deceased,  was1  exhibited  in  open  court,  and 
proved  and  admitted  to  record  in  solemn  form,  a  copy  of  which 
is  hereunto  annexed,  and  administration  of  all  and  singular 
the  goods,  chattels  and  credits  of  said  deceased  was  granted 

to as  administrat .  .  .  . ,  with  the  will  annexed, 

and having  first  taken  the  oath  and  performed 

all  other  requisites  required  by  law by  order  of  said 

court,  and  by  virtue  of  these  presents,  is  legally  authorized  to 
administer  the  goods,  chattels,  rights  and  credits  of  the  said 
deceased  according  to  the  tenor  and  effect  of  the  said  will  and 
testament,  and  according  to  law,  and  he  is  hereby  required  to 
render  a  true  and  perfect  inventory  of  all  and  singular  the 
goods,  chattels  and  credits  of  the  said  deceased,  and  appraised 
and  return  to  this  court  according  to  law,  and  to  render  a  true 
and  correct  account  to  this  court  of  his  actings  and  doing  yearly, 
and  every  year  until  his  administration  is  fully  completed. 

Witness  my  hand,  and  the  official  seal  of  said  court  this 

day  of ,  19 

,  Ordinary. 


APPLICATION  FOR  ADMINISTRATION  BY  ONE  SELECTED  BY 
NEXT  OF  KIN.     §3943(3). 


Georgia, County. 

To ,  Ordinary  of  said  County : 

The  petition  of of  said  State,  shows  that 

died  intestate  on  the day  of , 

19.  .  .  .,  a'  resident  of  said  county,  owning  at  the  time  of  his 

death  real  and  personal  estate  in  said  State  worth  about 

dollars,  and  that  said left  as  his  next  of  kin 

, ?  his  widow, . .  . , , 


ADMINISTRATORS  AND  EXECUTORS  189 

and ,  his  children,  all  of  full  age  and  residents 

of  s'aid  county,  and  an  estate  entirely  solvent;  that  said  next 
of  kin  have,  by  their  writing  annexed  to  this  petition,  selected 
your  petitioner  to  administer  on  said  estate;  wherefore,  your 
petitioner  prays  citation  to  issue  as  usual,  calling  upon  all  inter- 
ested to  show  cause,  if  any  they  can,  at  the term,  19.  . .  ., 

of   this   court,   why   letters   of   administration   should   not   be 

granted  on  the  estate  of ,   aforesaid,  to  your 

petitioner. 

This' day  of ,19 

,  Petitioner. 


SELECTION  BY  NEXT  OF  KIN.     §3943(4). 


We,  the  undersigned,  being  a  majority  of  the  next  of  kin  of 

,  who  died  on  the day  of ,  19 .  .  . , 

in  the  State  of  Georgia  and  county  of ,  intestate, 

and  we  being  also  equally  related  and  interested  in  the  distri- 
bution of estate,  being  his  children,  select 

,  of  said  State  and  county  as  our  choice  to 

administer  the  estate  of ,  and  pray  the  court 

of  ordinary  of  said  county  to  appoint  him,  he  giving  the  neces- 
sary bond  and  security  for  his  administration. 

This day  of ,  19 


ORDER  FOR  CITATION  TO  ISSUE. 


Court  of  Ordinary, County. 

Term,  19 

The  petition  of ,  for  permanent  letters'  of 

administration  on  the  estate  of ,  late  of  said 

county,  deceased,  coming  on  for  hearing,  it  is  ordered  and  ad- 
judged that  the  order  for  citation  prayed  for  be  granted,  and 
that  the  same  be  published  as  required  by  law. 
This day  of ,  19 

Ordinary. 


190  ADMINISTRATORS  AND  EXECUTORS 

CITATION  FOR  PERMANENT  LETTERS  OF  ADMINISTRATION. 


Georgia, County. 

To  all  whom  it  may  concern: 

of  said  State,  having,  in  proper  form, 

applied  for  permanent  letters  of  administration  on  the  estate 

of ,  late  of  said  county,  deceased,  this  is  to  cite 

all  and  singular  the  creditors  and  next  of  kin  of , 

deceased,  to  be  and  appear  at  the  court  of  ordinary  of  said 

county,  at  the term,  19.  .  .  .,  and  show  cause,  if  any 

they  have  or  can,  why  permanent  letters  of  administration 
should  not  be  granted  to  said on  said  estate. 

Witness  my  official  signature  this day  of ,  19.  .. 

Ordinary. 


ORDER  FOR.  LETTERS  TO  ISSUE. 


Court  of  Ordinary. 

Term,  19 

Citation  having  been  duly  issued  and  published,  requiring 

all  and  singular  the  next  of  kin  and  creditors  of , 

deceased,  late  of  said  county,  to  appear  at  this'  term,  and  show 
cause,  if  any  they  had   or  could,  why  permanent  letters  of 

administration  should  not  be  granted  to ,  of  said 

county,   and  the  parties   so  cited  making  no  valid   objection 
thereto,  it  is  ordered  by  the  court  that  letters  of  administration 

issue   to as    administrator  of , 

deceased^  upon  his  giving  bond   and  security  in  the  sum  of 

dollars,  with ,  security,   and 

taking  the  usual  oath  of  office. 

,  Ordinary. 


PERMANENT  LETTERS  OF  ADMINISTRATION. 


Georgia, County. 

By  the  Court  of  Ordinary  for  said  County. 

Whereas ,  deceased,  late  of  said  county, 

died  intestate,  having  while  he  lived,  and  at  the  time  of  his 
death,  divers  estates,  real  and  personal,  within  said  county,  and 
the  Court  at  the Term,  19.  .  .  .,  thereof,  having 


ADMINISTRATORS  AND  EXECUTORS  191 

issued  a  citation  calling  upon  all  persons  concerned,  to  be  and 

appear  at  the term  of  the  said  court,  and  show 

cause,  if  any  they  could  or  had,  why  permanent  letters  should 

not  be  granted  to ,  and  why  he  should  not  be 

appointed,  and  no  cause  having  been  shown  to  the  contrary,  and 

the  said having  given  bond  and  security,  and 

taken  the  oath,  as  required  by  law,  the  court  hereby  grants  unto 

the  said as  administrator  full  power,  by  the 

tenor  of  these  presents',  to  lawfully  administer  the  entire  estate, 

both  real  and  personal  of  said  deceased,  which  to 

in  his  lifetime  and  at  the  time  of  his  death  did  belong,  and  to 
ask,  demand,  sue  for,  recover  and  receive  the  same,  and  to  pay 
the  debts  in  which  the  deceased  stood  bound,  so  far  as  the  assets 
of  said  estate  may  extend,  according  to  law,  and  then  the  bal- 
ance, if  any,  to  pay  over  to  the  legal  heirs  and  distributees  of 
said  deceased,  and  to  do  and  perform  all  other  duties  as  such 
administrat.  .  .  .  devolved  upon  him  by  the  laws  of  this  State. 
Witness  my  hand  as  ordinary,  and  the  seal  of  said  court,  this 

day  of ,  19 

,  Ordinary. 


Selection  must  be  made  in  writing.  72/776.  When  one  creditor  alone 
selects  one  of  two  contestants,  selection  need  not  be  made  in  writ- 
ing. 61/164. 


CREDITOR'S  APPLICATION.     §3943  (3,  6). 


APPLICATION  BY  CREDITOR  FOR  LETTERS  OF  ADMINISTRATION. 


Georgia, County. 

To ,  Ordinary  of  said  County : 

The  petition  of of  said  State  shows  that 

of  said  county,  late  a  resident  thereof,  died 

intestate  on  the day  of ,   19.  .  .  .,  owning 

real  and  personal  estate  in  said  State  worth 

dollars ;  that  said at  the  time  of  his  death  was 

insolvent,  and  your  petitioner  is  a  creditor  of  said 

and  entitled  to  the  administration  on estate ; 

wherefore  your  petitioner  prays  that  citation  may  issue  in  his 
behalf,  calling  upon  all  persons  interested  to  show  cause,  if  any 
they  can  or  have,  why  letters  of  administration  should  not  be 


192  ADMINISTRATORS  AND  EXECUTORS 

granted  to  him  on  said  estate  at  the term,  19.  .  .  ., 

of  said  court  of  ordinary. 

,  Petitioner. 


ORDER  FOR  CITATION  TO  ISSUE. 


Court  of  Ordinary,  .......  County,  Georgia. 

Term,  19 

The  petition  of for  permanent  letters  of 

administration  on  the  estate  of ,  late  of  said 

county,  deceased,  coming  on  for  hearing,  it  is  ordered  and  ad- 
judged that  the  order  for  citation  prayed  for  be  granted  and 
that  the  same  be  published  as  required  by  law. 

This day  of ,  19 

Ordinary. 


CITATION. 

Georgia, County. 

To  all  whom  it  may  concern: 

of  said  State,  having  in  proper  form 

applied  to  me  for  permanent  letters  of  administration  on  the 

estate  of ,  late  of  said  county,  deceased,  this  is 

to  cite  all  and  singular  the  creditors  and  heirs  of 

to  be  and  appear  at  the term  of  court,  19.  .  .  ., 

and  show  cause,  if  any  they  can,  why  permanent  letters  of 
administration  should  not  be  granted. 

Witness  my  official  signature  this day  of ,  19.  .. 

Ordinary  of County. 


COUNTY  ADMINISTRATOR.     §§3952-3968. 


ORDER  APPOINTING  ADMINISTRATOR. 


Georgia, County. 

By  the  Ordinary  of  said  County. 

It  appearing  to  the  court  that is  a  citizen  of 

said  county,  that  he  has  attained  the  age  of  twenty-one  years. 


ADMINISTRATORS  AND  EXECUTORS  193 

and  has  been  a  resident  of  s'aid  county  for  one  year,  it  is  ordered 

that  said be,  and  he  is,  hereby  appointed 

county  administrator  for  said  county,  to  hold  said  office  until 
the  first  Monday  in  March,  19 .  .  .  . ,  and  until  his  successor  is 
appointed  and  qualified,  upon  his  giving  bond  payable  to  the 
ordinary  of  said  county  for  the  benefit  of  all  concerned  with 
good  security,  to  be  judged  of  by  said  ordinary,  in  the  sum  of 
five  thousand  dollars',  conditioned  for  the  faithful  discharge  of 
his  duty  as  county  administrator,  as  required  by  law.  Let  this 
order  be  entered  on  the  minutes  of  the  court,  and  the  original 
placed  in  the  possession  of  said  county  administrator. 

Witness  my  hand  and  seal  of  office  this.  .  .day  of ,  19.  . 

Ordinary  of County. 


[NOTE:  Order  appointing,  should  be  placed  on  minutes.  §3954. 
Where  an  estate  is  unrepresented,  and  not  likely  to  be  represented,  the 
ordinary  is  required  to  vest  the  administration  in  the  county  adminis- 
trator. §3957.  The  clerk  of  the  Superior  Court  is  eligible  to  this  office. 
§3955.  Separate  letters  of  administration  upon  each  estate  placed  in  the 
hands  of  the  county  administrator  are  required.  §3958.] 


APPLICATION  TO  VEST  ADMINISTRATION  IN  COUNTY  ADMINIS- 
TRATOR.    §§3957,  3958. 


Georgia, County. 

To  the  Ordinary  of  said  County: 

The  petition  of showeth  that 

departed  this  life  on  or  about  the day  of ,  19.  .  ., 

a  resident  of  said  county,  intestate,  leaving  an  estate  in  said 
county  of  real  and  personal  property  of  the  probable  value  of 

dollars,   and   that  said   estate   is  unrepresented, 

and  not  likely  to  be  represented.     Petitioner  is 

Wherefore,  petitioner  prays  an  order  directing  that  citation 
be  issued  herein  and  published  as  the  law  requires;  and  that  if 
no  good  cause  be  shown  to  the  contrary,  administration  upon 
said  estate  be  vested  in  the  county  administrator  of  said  county, 
or  some  other  fit  and  proper  person. 


194:  ADMINISTRATORS  AND  EXECUTORS 

ORDER  FOR  CITATION  TO  ISSUE. 


Court  of  Ordinary. 

Term,  19 

Upon  reading  the  foregoing  petition,  it  is  ordered  that  cita- 
tion therein  be  issued  and  published  as  required  by  law. 

,  Ordinary. 


CITATION. 

Georgia, County. 

To  whom  it  may  concern: 

,  by  petition  in  due  form,  having 

represented  to  me  that ,  late  of  said  county, 

deceased,  died,  leaving  an  estate  of  realty  and  personalty,  and 
that  the  same  is  not  represented,  and  is  not  likely  to  be,  this  is 

to  cite  the  creditors  and  next  of  kin  of  said , 

deceased,  to  be  and  appear  at  the term,  19.  . .  .,  of 

the  Court  of  Ordinary  of county,  to  show  cause,  if 

any  they  have  or  can,  why  the  administration  of  said  estate 
should  not  be  vested  in ,  the  County  Adminis- 
trator, or  some  other  fit  and  proper  person. 

This day  of ,  19 

Ordinary. 


ORDER  VESTING  ADMINISTRATION  IN  COUNTY  ADMINISTRATOR. 


Court  of  Ordinary,   County. 

Term,  19 

The  petition  of averring  that  the  estate  of 

,  deceased,  is  unrepresented,  and  not  likely 

to  be  represented  and  praying  that  letters  of  administration  on 
the  estate  of  said  deceased  be  vested  in  the  county  administrator 
of  said  county  or  some  other  fit  or  proper  person,  having  been 
duly  filed;  and  it  appearing  that  citation  therein  was  issued  and 
published  according  to  law,  requiring  all  concerned  to  appear 
at  this  term,  and  show  cause,  if  any  they  could  or  had,  why 
said  letters  should  not  be  granted ;  and  it  also  appearing  that 
said  deceased  died  a  resident  of  said  county  on  or  about  the 
day  of ,  19.  .  .  .,  intestate,  and  no  objection 


ADMINISTRATORS  AND  EXECUTORS  195 

H 

being  offered  thereto;  it  is  therefore  ordered  by  the  court  that 
administration  on  said  estate  be,  and  it  is,  hereby  vested  in 

,  county  administrator  of  said  county,  and  that 

letters  issue  to  him  as  provided  by  law. 

,  Ordinary. 


CLERK  OF  SUPERIOR  COURT  AS  ADMINISTRATOR. 
§§3965-3968. 


APPLICATION  FOR  APPOINTMENT  OF  CLERK  OF  SUPERIOR  COURT 
AS  ADMINISTRATOR. 


Georgia, County. 

To ,  Ordinary  of  said  County : 

The  petition  of shows  that  he  is  a  son  of 

,  late  of  said  county,  deceased ;  that  said 

died  in  said  county  on  the day  of 

,  19 .  .  .  . ,  intestate,  leaving  in  said  county  a 

valuable  estate,  consisting  of  real  and  personal  property,  worth 

the  sum  of dollars,  which  said  estate  is'  not 

represented  and  not  likely  to  be  represented,  and  is  wasting; 
that  your  petitioner  is  interested  in  said  estate  as  an  heir  at  law 
of  said ;  wherefore  your  petitioner,  in  con- 
sideration of  the  premises,  asks  your  Honor  to  issue  the  usual 
citation,  where  no  person  applies  for  letters  of  administration 
on  the  estates  of  deceased  intestates,  calling  on  all  persons 
interested  to  show -cause  why  the  clerk  of  the  superior  court  of 
said  county,  or  some  other  fit  and  proper  person,  should  not  at 

the term,  19 .  . .  . ,  of  said  court,  be  appointed 

as  administrator  on  the  estate  of  said 

This day  of 19 

,  Petitioner. 


ORDER  FOR  CITATION  TO  ISSUE. 


Court  of  Ordinary. 

.Term,  19 

It  being  made  to  appear  by  satisfactory  proof  that , 

late  of county,  Georgia,  died  intestate,  and  no  one 


196  ADMINISTRATORS  AND  EXECUTORS 

applies  for  administration  on  his  estate,  or  is  likely  to  apply, 
whereby  great  loss  and  injury  is  daily  accruing  to  the  next  of 
kin  and  creditors ;  that  there  is  an  estate,  real  and  personal,  of 

said  decedent  in  said  State  and  county,  worth 

dollars,  which  should  be  taken  care  of;  it  is  hereby  ordered  that 
citation  issue,  in  terms  of  the  law,  requiring  all  persons'  inter- 
ested to  show  cause  at  the term,  19.  .  .  .,  of  this 

court,  why  administration  of  said  estate  should  not  be  vested  in 
the  clerk  of  the  superior  court  or  some  other  fit  person. 

Ordinary. 


[NOTE:  The  clerk  of  the  Superior  Court  is  appointed  when  there  is 
no  county  representative.  §3965.  Rules  to  guide  discretion  of  ordinary. 
§3968.] 


CITATION. 


(NOTE:     The  usual  citation  should  be  issued  and  published,  as  in 
other  cases.) 


ORDER  VESTING  ADMINISTRATION  IN  THE  CLERK  OF  THE 
SUPERIOR  COURT. 


Court  of  Ordinary. 

Term,  19 

Whereas,  at  the term,  19.  . .  .,  of  this  Court,  an 

order  was  passed  on  the  petition  of % that 

,  late  of  said  county,  had  departed  this  life 

intestate,  and  his  estate,  real  and  personal,  in  said  State,  of  the 

value  of dollars,  and  that  said  estate  was  not 

represented,  and  was  not  likely  to  be  represented,  and  was 
wasting,  for  want  of  representation  thereon,  and  directing  cita- 
tion to  issue,  calling  upon  all  persons  interested  to  show  cause 
at  this  term,  if  they  could,  why  administration  of  said  estate 
should  not  vest  in  the  clerk  of  the  Superior  Court  of  said  county, 
and  it  now  appearing  that  said  citation  has  been  legally  pub- 
lished, and  all  the  necessary  preliminary  steps  have  been  taken 
which  are  required  in  such  cases  where  administration  is1  vested 
in  the  clerk  of  the  Superior  Court,  and  no  valid  objection  having 
been  offered  to  such  proceedings,  it  is  therefore  ordered  that 
,  clerk  of  the  Superior  Court  of  said  county 


ADMINISTRATORS  AND  EXECUTORS  197 

be,  and  he  is,  hereby  vested  with  administration  on  the  estate 
of ,  deceased,  and  take  the  usual  oath  of  office. 

Ordinary. 


[NOTE:  It  is  not  the  duty  of  the  court  of  ordinary  to  require  the 
clerk  of  the  superior  court  to  give  bond  on  such  appointment  in  the  first 
instance.  See  106/855  (33  S.  E.  43).] 


PERMANENT  LETTERS  OF  ADMINISTRATION.      §§3969-3982. 


APPLICATION  FOR  PERMANENT  LETTERS.     §3969. 


Georgia, County. 

To ,  Ordinary  of  said  County: 

The  petition  of shows  to  the  Court  the 

following  facts: 

1.  That was  a  resident  of county, 

and  died  therein  on  the day  of ,   19.  .  .  ., 

leaving  in  said  county  personal  property  of  the  value  of 

dollars,  and  real  property  of  the  value  of dollars ; 

that  said left  a  widow, ,  and  the 

following  children : , ,  and ,  all 

residents  of  said  county. 

2.  That  your  petitioner  believes,  and  so  far  as  he  knows, 

the  said died  intestate,  and  it  is  necessary  that 

permanent  letters'  of   administration  be  granted   on   his   said 
estate  for  the  purpose  of  collecting  up  and  taking  charge  of  and 
distributing  the  same  according  to  law. 

3.  That  petitioner,  being  a  son  of  the  deceased,  has  been 
selected  by  his  remaining  heirs  at  law  as  a  suitable  and  proper 
person  to  be  appointed  permanent  administrator  on  said  estate : 

Wherefore,  petitioner  prays  that  a  proper  order  be  made  and 
citation   issue   and  be  published   calling  upon  the  heirs   and 

creditors  and  all  persons  interested  to  appear  at  the 

term,  19.  .  .  .,  of  the  court  of  ordinary  of county,  to 

show  cause,  if  any  they  have  or  can,  why  your  petitioner  should 
not  be  granted  permanent  letters  of  administration  on  said 
estate. 

Petitioner. 


198  ADMINISTRATOR  AND  EXEC u TOES 

AGREEMENT  OF  HEIRS  FOR  SELECTION  OF  ADMINISTRATOR. 


Georgia, County. 

day  of ,  19 

We,  the  undersigned,  being  a  majority  of  the  next  of  kin 

of ,  late  of  said  county,  deceased,  hereby  agree 

that  our  brother, ,  may  be  appointed  perma- 
nent administrator  of  the  estate  of  our  deceased  father, 

,  and  we  ask  for  his  appointment. 


ORDER  FOR  CITATION.     §3970. 


Georgia, County.  Court  of  Ordinary, 

day  of ,  19 

The  foregoing  petition  of to  be  appointed 

permanent  administrator  of ,  late  of  said 

county,  deceased,  having  been  presented  to  me,  and  the  recital 
of  facts  therein  appearing  to  be  true,  it  is  ordered  that  citation 
issue  as  prayed.  This day  of ,  19.  ... 

Ordinary. 


CITATION.    §3970. 


Georgia,   County : 

To  all  whom  it  may  concern: 

having  in  due  form  applied  to  me  for 

permanent  letters  of  administration,  upon  the  estate  of 

,  late  of  said  county,  deceased ;  this  is  to  cite  all  and 

singular  the  next  of  kin  and  creditors  of  the  s'aid , 

deceased,  that  said  application  will  be  heard  before  me  at  the 

regular term,   19.  .  .  .,  of  the  court  of  ordinary 

of county. 

Witness  my  hand  and  official  signature,  this day 

of ,19 

Ordinary. 


ADMINISTRATORS  AND  EXECUTORS 
CAVEAT  TO  APPLICATION. 


199 


In    the    Court    of    Ordinary, 

County, 

term,  19.  ... 


In  the  matter  of  the  appoint- 
ment of  a  permanent  admin- 
istrator on  the  estate  of 

,  late  of 

said   county,   deceased. 

Comes  now ,  a  daughter  of  the  said 

,  late  of  said  county,  deceased,  at  this 

term,  19.  .  .  .}  and  files  this  her  caveat  to  the  appointment  of 

as'  permanent  administrator  on  said  estate, 

and  for  grounds  of  caveat,  shows : 

1.  That  said ,  the  applicant,  is  not  a 

citizen  of  the  State  of  Georgia. 

2.  That  said is  a  minor  and  is  not  yet 

twenty-one  years  of  age. 

3.  That  said is  wholly  and  utterly  incom- 
petent for  said  trust.     (Here  the  caveat  may  set  out  any  ground 
that  may  exist  as  a  reason  why  the  appointment  should  not  be 
made  as  prayed.) 

4.  Caveatrix  stands  ready  to  verify  each  and  every  one  of 
the  grounds  hereinbefore  set  out  and  asks  the  court  that  some 
other  suitable  person  be  appointed. 

JUDGMENT  ON  CAVEAT. 

Application  for  permanent  let- 

, .  ters  of  administration  on  the 

'  aPPllcant  I       estate  of , 

v  '  .  .      |       deceased.     In  the  court  of 

,  caveatrix.  j-  r  n       ± 

ordinary  of County, 

term,  19 .... 

The  above  and  foregoing  case  coming  on  for  a  hearing,  and 
after  a  trial  it  is  ordered  that  the  caveat  thereto  be  not  sus- 
tained and  that  the  applicant,  ,  having  been 

selected  by  a  majority  of  the  next  of  kin,  be  and  he  is  hereby 

appointed  permanent  administrator  of  the  estate  of , 

late  of  said  county,  deceased,  and  that  he  give  bond  in  the  sum 
of dollars,  in  terms  of  the  law  as  such  admin- 


200  ADMINISTRATORS  AND  EXECUTORS 

istrator,  and  that  upon  taking  the  oath  and  making  said  bond, 
that  letters  of  administration  do  issue  to  him,  as  prayed. 

It  is  further  ordered  that for  the  use  of  the 

officers  of  court  do  recover  of ,  caveatrix,  the 

sum  of dollars'  and cents,  costs  of 

the  caveat.     This day  of ,  19 .... 

Ordinary. 


OATH  OF  ADMINISTRATOR.     §3971. 


Georgia, County. 

Before  me,    ,  Ordinary  of  said  county, 

personally  came ,  who,  being  duly  sworn,  on 

oath  says  that  having  been  appointed  permanent  administrator 

on  the  estate  of ,  late  of  said  county,  deceased, 

that  he  will  well  and  truly  discharge  the  duties  of  such  appoint- 
ment as  administrator  to  the  best  of  his  ability. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


Ordinary. 


BOND  OF  ADMINISTRATOR.     §§3972-3977. 


Georgia, County. 

Know  all  men  by  these  presents,  that  we, ,  as 

principal,  and. and ,  as  securities, 

are  held  and  firmly  bound  unto ,  Ordinary  of 

said  county,  and  his  successors  in  office,  in  the  just  and  full  sum 

of dollars,  and  as  against  this'  obligation  or 

any  liability  incurred  thereby,  each  of  us  hereby,  for  himself 
and  family,  waive  and  renounce  any  and  all  right  of  homestead 
and  exemptions  that  may  exist  under  the  laws  of  Georgia,  or 
to  plead  the  same  against  this  obligation  or  any  liability  there- 
under. 

Signed  with  our  hands  and  sealed  with  our  seals,  this 

day  of ,19 

The  condition  of  the  above  obligation  is  as  follows1:  Whereas 
on  the day  of ,  19.  .  .  ., 


ADMINISTRATORS  AND  EXECUTORS  201 

was  appointed  by  the  court  of  ordinary  of  .........  county, 

permanent  administrator  of  the  estate  of.  .............  ,  late 

of  said  county,  deceased,  and  his  bond  having  been  fixed  by  the 
Hon  ...............  ,  Ordinary  of  said  county,  at  ......... 

dollars  ;   now,   should  the   said  ..............  well   and   truly 

and  faithfully  discharge  his  duty  as  such  administrator  accord- 
ing to  the  law  in  such  cause  made  and  provided,  then  this1 
obligation  to  be  void  ;  otherwise  of  full  force  and  effect. 


Principal 

................  '•  ...........  ;..(L.    S.) 

Security 

............................  ;..(L.  S.) 

Security 

Executed  in  the  presence  of  and  approved 
by  me,  this  .....  day  of  ........  ,  19.  .. 


Ordinary. 


•LETTERS  OF  ADMINISTRATION. 


Georgia, County. 

By  the  Court  of  Ordinary  for  said  County. 

Whereas, ,  late  of  said  county,  deceased,  died,  a 

resident  of  said  county,  intestate,  having  while.  .  .  .lived,  and  at 

the  time death,  divers  estates,  real  and  personal,  within 

the  said  State  and  county,  by  means  whereof  the  full  disposi- 
tion and  power  of  granting  the  administration  of  the  estate  of 
the  said  deceased,  and  also  a  final  dismission  from  the  same,  to 
the  court  aforesaid  does  of  right  belong;  and  the  court  desiring 
that  the  same  might  be  well  and  truly  administered,  and  legally 
disposed  of,  did,  at  a  regular  term  thereof,  grant  an  order 

vesting  the  administration  of  said  estate  in and 

ho  having  given  bond  and  security,  and  having  taken  the  oath 

as  therein  required,  the  court  hereby  grants  unto  said 

as  administrat .  .  .  full  power,  by  virtue  of  these  presents,  to 
lawfully  administer  the  entire  estate,  both  real  and  personal, 

of  said  deceased,   which  to in lifetime 

and  at  the  time  of death  did  belong;  and  to  ask,  demand, 

sue  for,  recover  and  receive  the  same,  and  to  pay  the  debts  in 

which   the   deceased   stood  bound,   so  far  as assets  will 

extend,  according  to  law,  and  then  the  balance,  if  any,  to  pay 


202  ADMINISTRATORS  AND  EXECUTORS 

over  to  the  legal  heirs  and  distributees  of  said  deceased,  and  to 
do  and  perform  all  other  duties  as  such  administrat.  .  .devolved 
upon by  the  laws  of  this  State. 

Witness  my  hand  as  ordinary,  and  the  seal  of  said  court, 
this day  of ,  19 

[SEAL]  ,  Ordinary. 


NOTICE  TO  DEBTORS  AND  CREDITORS. 


Georgia, County. 

All  creditors  of  the  estate  of ,  late  of 

county,  deceased,  are  hereby  notified  to  render  in  their  demands 
to  the  undersigned  according  to  law,  and  all  persons  indebted 
to  said  estate  are  required  to  make  immediate  payment  to  me. 
,19.... 

Administrator  of ,  deceased. 


Administration  not  necessary,  when.     §3964. 

Citation  should  issue  to  "All  concerned."     §3970.     123/329    (51  S.  E. 

423).     Citation  is  indispensable.     12/526;   117/723   (45  S.  E.  42). 
Interest  of  applicant  must  appear   in   application.     56/146;    113/1006 

(39  S.  E.  474);   115/967   (42  S.  E.  262). 
Nonresident  of  county,  allegation  that  deceased  was,  not  affirmatively 

show  want  of  jurisdiction.     89/441  (15  S.  E.  535). 


BOND  FOR  TITLE. 


APPLICATION  TO  REQUIRE  ADMINISTRATOR  TO  MAKE  TITLES 
ON.     §§4016-4020. 


PETITION  OF  HOLDER  OF  BOND.     §4016. 


Georgia, County. 

To  Hon ,  Ordinary  of  said  County : 

The  petition  of shows  the  following  facts : 

1.     That  on  the day  of ,  19 , 

,  of  said  county,  made  and  executed  to  your 

petitioner  a  bond  for  title,  a  copy  of  which  is  hereto  annexed 
and  marked  "Exhibit  A,"  wherein  lie  obligated  himself  to  make 
to  petitioner  good  and  sufficient  title  in  fee  simple  to  lot  of 
land .  .  .  . ,  in  the . district,  and section  of 


ADMINISTRATORS  AND  EXECUTORS  203 

.  .  •  •  county,  upon  the  payment  of  a  certain  note  made 

on  said  day  for  the  sum  of dollars,  and  due 

day  of ,  19 .  .  .  . ,  with  interest  from  date  at 

per  cent,  per  annum. 

2.  That  on  the day  of ,  19 ,  the  said 

died,  and  at  the term,  19 .  . .  . ,  of  the 

court  of  ordinary  of county, was  appointed 

permanent  administrator  on  the  estate  of  the  said 

3.  That  on  the day  of ,  19.  . .  .,  petitioner 

paid  to ,  as  administrator  of  said , 

deceased,  the  said  sum  of dollars,  together  with 

interest  thereon  at per  cent,  per  annum,  and  thereby  fully 

satisfied  said  note,  which  said  note  petitioner  stands  ready  to 
show  to  the  court  as  being  fully  paid  off. 

Petitioner  further  shows  that  the  heirs  at  law  of  the  said 

,  are ,  , , 

and ,  each  and  all  of  whom  are  of  full  age  and  are 

residents  of  said  county  of 

5.  Petitioner  shows  that  no  deed  has  been  made  to  him  in 
pursuance  of  said  bond,  and  he  brings  this  petition  asking  the 
court  for  a  proper  order,  after  due  notice  to  the  said  adminis- 
trator and  the  said  heirs,  requiring  said  administrator  to  make 
said  deed  in  the  terms  of  said  bond,  and  the  obligation  of  the 
said therein  set  out  and  made. 

Petitioner. 


RULE  NISI. 

Court  of  Ordinary, 

Term,  19 

The  above  and  foregoing  application,  having  been  considered 

by  me,  it  is  ordered  that ,  as  administrator  of  the 

estate  of ,  deceased,  and , , 

and ,  heirs  at  law  of  the  said , 

deceased,  show  cause  before  me  at  the term,  19. . . ., 

of  the  court  of  Ordinary  of county,  why  the  prayer 

of  the  petition  should  not  be  had  and  allowed,  and  the  deed 
made  in  pursuance  of  said  bond. 

Let ,  administrator,  be  served  fifteen  days 


204 


ADMINISTRATORS  AND  EXECUTORS 


with  a  copy  of  petition  and  this  order,  and  the  said  heirs  at  law 
be  notified  by  publication  of  the  notice  to  them  in  (name  of 
paper). 

This day  of ,  19 

Ordinary. 
NOTICE  TO  HEIRS  AT  LAW.     §4017. 

Georgia, County. 

having  applied  to  the  ordinary  by 

petition  asking  that ,  as  administrator  of  the 

estate  of .  . ,  deceased,  late  of  said  county,  be  required 

to  make  to  him  a  deed  to  lot  of  land,  No in  the 

district  and section  of county,  in  pursuance 

of  a  bond  for  title  made  by to  the  said 

in  his  life  time,  the  said alleging  that  he  has  fully 

met  his  obligations  in  said  bond. 

This  is  to  notify ,  ,  

and ,  heirs  at  law  of  the  said ,  deceased, 

to  be  and  appear  at  the term,  19.  . .  .,  of  the  court 

of  ordinary  of county,  and  show  cause,  if  any  they 

have  or  can,  why  the  said  administrator  should  not  be  required 

to  make  said  deed  as  prayed  for  by  the  said . .  . , , 

petitioner. 

Ordinary. 
RULE  ABSOLUTE. 

Court  of  Ordinary. 

Term,  19 

^ 

vs. 

as    administrator     Petition  of 

of  the  estate  of ,  f  for   order   req"iring   adminis- 

deceased,  and , ,     trator  to  make  deed. 

and ,  heirs 

at  law. 

This  case  coming  on  for  a  hearing,  and  it  appearing  that  all 
respondents  therein  have  been  properly  notified,  and  no  objec- 


ADMINISTRATORS  AND  EXECUTORS  205 

tions  having  been  filed  to  the  application,  it  is  ordered  that  the 

said ,  as  administrator  of  the  estate  of , 

deceased,  do,  and  he  is  hereby  required  to  make  to 

a  deed  conveying  good  and  sufficient  title  to  lot  of  land  No 

in  the district  and section  of county, 

according  to  the  terms  of  the  bond  for  title  of , 

deceased. 

It  is  further  ordered  that  it  appearing  that  the  purchase 

money  of  said  land  being  due  before  the  death  of  said , 

and  the  petitioner, ,  not  having  paid  the  same  at 

the  time  it  became  due,  but  having  paid  the  purchase  money 

after  the  death  of  the  said - ,  that  judgment  be 

and  the  same  is  hereby  rendered  against for  the 

sum  of dollars   and cents,   the   cost   of  this 

proceeding.     This day  of ,  19.  ... 


Ordinary. 


DEED  OF  ADMINISTRATOR  IN  PURSUANCE  OF  ORDER. 


Georgia,   County. 

This  indenture  made  and  entered  into  this  the day 

of ,  19.  .  .  .,  between ,  as  adminis- 
trator of  the  estate  of ,  late  of  said  county, 

deceased,  party  of  the  first  part,  and ,  of  said 

county,  party  of  the  second  part,  Witne&'seth: 

That  whereas,  on  the day  of ,  19 .  . .  . , 

made  his  bond  for  title  to ,  wherein 

he  obligated  himself  to  make  good  and  sufficient  title  in  fee 

simple  to  lot  of  land,  No ,  in  the district  and 

section  of county,  and  so  known  and 

described  upon  the  plan  or  map  of  said  county,  said  lot  con- 
taining  acres  of  land,  more  or  less,  upon  the  payment 

by  the  said of  a  certain  promissory  note  in  the 

slim  of dollars,  with  interest  from  date  at  the 

rate  of per  cent,  per  annum,  and  whereas  the  said 

on  the day  of ,  19.  . . ., 

paid  to  the  party  of  the  first  part,  the  amount  of  said  note  with 
interest,  and  afterwards  by  petition  to  the  court  of  ordinary  of 

county,  and  after  due  notice  to  the  party  of  the 

first  part,  and  the  heirs  at  law  of  the  said ,  deceased, 


20,3 


ADMINISTRATORS  AND  EXECUTORS 


the  court  of  ordinary  at  the term,  19.  .  .  . ,  ordered 

and  adjudged  that  the  party  of  the  first  part  should  make  a 
deed  according  to  the  terms  of  said  bond. 

Now,  therefore,  in  consideration  of  the  premises,  and  obedi- 
ence to  the  order  of  the  court  of  ordinary,  and  in  the  further 

consideration  of  the  sum  of dollars,  in  hand 

paid,  at  and  before  the  sealing  and  delivery  of  these  presents, 
receipt  whereof  is  hereby  acknowledged,  the  said  party  of  the 
first  part  sells  and  conveys,  and  by  these  presents,  does  sell  and 

convey,  unto  the  said .  . ,  party  of  the  second  part, 

all  that  tract  or  parcel  of  land,  situated,  lying  and  being  in  the 

county  of ,  and  known  upon  the  plan  or  map  of 

said  county  as  lot  of  land,  Xo in  the district  and 

section  of county,  containing 

acres,  more  or  less. 

To  have  and  to  hold  the  said  premises  conveyed  unto  the 

said ,  to  his  own  proper  use,  benefit  and  behoof, 

together  with  all  the  rights,  members  and  appurtenances  thereto 
belonging  or  in  anywise  appertaining,  forever  in  fee  simple. 

In  witness  whereof  the  said  party  of  the  first  part,  as  admin- 
istrator of  the  said ,  deceased,  has  hereunto  set 

his  hand  and  affixed  his  seal,  the  day  and  year  first  above 
written. 

(SEAL) 

Administrator  of ,  deceased. 

Signed,  sealed  and  delivered  in  the 

presence  of: 
,  J.  P. 

RETURN  OF  ADMINISTRATOR  AFTER  MAKING  OF  DEED. 

TTQ 

Petition  for  the  making  of 
• : '  Admr.  I  deed,  upon  the  bond  for  title 

of >  deceased,  and  of  the  intestatf?j ? 

......  .  . ,  and ,  deceased, term,  19 .  . 

heirs  at  law  of  said , 

deceased. 

Comes  now ,  administrator  of , 

deceased,  and  shows  to  the  court  that,  in  pursuance  of  the  order 
granted  in  the  above  named  and  stated  matter  at  this  term  of 


ADMINISTRATORS  AND  EXECUTOES  207 

the  court,  the  undersigned,  as  administrator  of , 

deceased,  has  made  to a  deed  to  lot  of  land,  No , 

in  the district  and section  of County, 

Georgia,  containing acres,  more  or  less';  and  this  return 

is  made  in  compliance  with  said  order. 

Administrator  of ,  deceased. 


ORDER  TO  FILE  RETURN. 


Court  of  Ordinary. 

Term,  19 

,  as  administrator  of ,  deceased, 

having  made  returns  to  this  court  of  the  title  made  by  him, 

under  a  bond  given  by ,  deceased,  to ,  in 

which  he  fully  stated  the  situation  of  the  land,  its  boundaries, 

and  enclosing  in  his  returns1  the  original  bond  of , 

deceased,  to ,  ordered  that  the  same  be  filed  in 

this  court. 

,  Ordinary. 


IT.— BONDS  OF  ADMINISTRATORS. 


TEMPORARY  ADMINISTRATOR,     §3936. 
(See  form,  ante,  page  182.) 


PERMANENT  ADMINISTRATOR.     §§3972-3977.- 
(See  form,  ante,  page  200.) 


ADMINISTRATOR.     §3953. 


Georgia, County. 

Know  all  men  by  these  presents :    That  we, , 

county  administrator,  principal,  and and , 

as  securities,  are  jointly  and  severally  held  and  firmly  bound 

unto ,  Ordinary  of  said  county,  and  his  successors 

in  office,  for  the  benefit  of  all  concerned,  in  the  just  and  full 

sum  of dollars ;  and  as  against  the  payment  of 

this  obligation  or  any  liability  thereon,  each  of  us,  for  himself 


208  ADMINISTRATORS  AND  EXECUTORS 

and  family,  waives  and  renounces  any  and  all  right  of  home- 
stead or  exemption  that  we  may  have  under  the  laws  of  Georgia, 
and  to  plead  the  same  against  this  obligation  or  any  liability 
thereunder. 

Signed  with  our  hands  and  sealed  with  our  seals,  this  ...... 

day  of  ..............  ,  19  ____ 

The  condition  of  the  above  obligation  is  as  follows  :  ........ 

............  has  on  the  ......  day  of  ............  ,  19  .  .  .  .  , 

been  appointed  by  the  Hon  ............  ,  Ordinary  of  ....... 

county,  as1  county  administrator  of  said  county  for  the  term  of 
four  years  next  following,  and  until  his  successor  is  appointed 
and  qualified.     Now,  if  the  said  ............  shall  faithfully 

discharge  his  duty  as  county  administrator  as  required  by  law, 
then  this  bond  to  be  void,  otherwise  of  full  force  and  effect. 


Principal, 

...........................  ....(L.  S.) 

Security. 

........................  .......  (L.S.) 

Security. 

Signed  in  the  presence  of  and  approved 
and  attested  by  me,  this  ........  day 

of..  ,  19.. 


Ordinary. 


APPROVAL  OF  BOND. 


Court  of  Ordinary. 


..............  having  tendered  bond  in  the  sum  of  ...... 

........  dollars,  as  administrat  ...  of  the  estate  of  .........  , 

deceased,  with  ......  ............  as  suret.  .  .  ;  said  bond  is 

approved  and  ordered  to  be  filed. 

..........................  ,  Ordinary. 


JUSTIFICATION  OF  OBLIGORS  IN  BOND. 


Georgia, County. 

In  person  before  me  came and ,  the 

said proposing  to  give  bond  as  principal,  and  the 


ADMINISTRATORS  AXD  EXECUTORS  209 

said as  security,  for  the  administrator  of  the 

estate  of ,  who,  being  duly  s'worn,  depose  and 

say,  on  oath,  that  they  are  each  of  them  worth  the  sum  of 

dollars  over  and  above  all  their  just  debts  and 

liabilities,  and  allowances  by  law  of  exemption  and  homestead. 

Principal,  (L.  S.) 

Security,    (L.  S.) 

Sworn  to  and  subscribed  before  me  this 
day  of ,19 


Ordinary  of County. 


SECURITY,  APPLICATION  FOR  RELIEF  OF.    §§3050,  3052,  3976. 


Georgia, County. 

To  lion ,  Ordinary  of  said  County : 

The  petition  of ,  security  for , 

administrator  upon  the  estate  of ,  deceased, 

respectfully  shows  that  your  petitioner  heretofore,  to  wit:  on 

the day  of f 19 . . . . ,  became  the  security  upon 

the  administration  bond  of ,  who  took  out  letters 

of  administration  upon  the  estate  of ,  deceased, 

which  administration  bond  is  for  the  sum  of dollars. 

And  your  petitioner  avers  that  he  conceives  himself  in  danger 
of  being  injured  by  his  s'ecurityship  as  aforesaid,  in  consequence 
of  the  neglect  of  said  administrator.  Wherefore,  your  petitioner 
prays  for  relief  from  securityship,  according  to  the  statute  in 
such  case  made  and  provided.  This.  .  .  .day  of ,  19.  .. 

Attorney  for  Applicant. 


ORDER  ON  APPLICATION  TO  STRENGTHEN  BOND  OF  ADMINIS- 
TRATOR. 


In    the    Court    of    Ordinary. 

Term,   19 .... 

•  1  •  ' ;>  administrator  f  Appiication  to  strengthen  bond 

of  the  estate  of of  administrator. 

Jate  ot  said  county,  deceased. 

The  above  named  and  stated  matter  coming  on  for  a  hearing, 
and  it  appearing  that  the  respondent, ,  adminis- 


210  ADMINISTRATORS  AND  EXECUTORS 

trator  of ,  deceased,  has  been  served  with  a 

copy  of  the  petition  in  said  application,  as  ordered  therein,  by 
the  sheriff  of  said  county,  more  than  ten  days  before  this  term 
of  the  court,  and  after  hearing  evidence  therein: 

It  is  ordered  that  the  said ,  as  administrator  of 

the  said ,  deceased,  be,  and  he  is,  hereby  required 

to  give  a  new  bond  as  such  administrator,  to  be  approved  of  by 
me,  within  ten  days  from  this  date ;  and  on  his  failure  so  to  do, 
that  he  be  removed  from  his  said  trust. 


Ordinary. 


SECURITY — BOND  WHEN  ADMINISTRATOR  GIVES.     §3976. 


Georgia, County. 

Know  all  men  that  we ,  principal,  and , 

security,  are  held  and  bound  unto ,  ordinary,  and 

his  successors  in  office,  in  the  sum  of dollars, 

for  the  payment  of  which  we  bind  ourselves',  our  heirs  and 
assigns,  jointly  and  severally,  this. .  .  .day  of ,  19.  .. 

The  condition  of  this  bond  is  such  that,  whereas , 

appointed  administrator  of .• ,  deceased,  has  been 

required  by  the  court  of  ordinary  of  said  county,  for  certain 
causes,  stated  in  an  order  pass'ed  by  said  court,  to  give  new 

bond  and  security;  now,  if  said has  performed  all 

the  duties  of  administrator  of ,  deceased,  and  will 

perform  all  the  duties  of  such  administrator,  then  the  above 
bond  will  be  null  and  void;  else  to  remain  in  full  force  and 
virtue. 

Witness  our  hands  and  seals. 

Principal.  (L.  S.) 

Security.     (L.  S.) 

Signed  in  the  presence  of  and  approved 

by 

,  Ordinary. 


APPLICATION  TO  REQUIRE  ADMINISTRATOR  TO  GIVE  ADDITIONAL 

SECURITY. 


Georgia, County. 

To  the  Hon ,  Ordinary  of  said  County : 

The  petition  of shows  the  following  facts' : 


ADMINISTRATORS  AND  EXECUTORS  211 

1st.  At  the term,  19.  .  .  .,  of  this  honorable  court, 

was  appointed  permanent  administrator  of  the 

estate  of ,  late  of  said  county,  deceased. 

2nd.  Petitioner  is  an  heir  at  law  of  the  said 

and  one  of  the  distributees  of  said  estate. 

3rd.  That  upon  the  appointment  of ,  as 

administrator  of  said  estate,  his  security, , 

has  become  insolvent,  and  has  left  the  state,  and  has  left  no 
property  or  effects  here  to  make  good  his  bond. 

4th.  That  about dollars  worth  of  property 

went  into  the  hands  of  said ,  as  such  administrator, 

and,  up  to  this  time,  he  has  made  no  distribution  of  said  estate. 

5th.  Petitioner  prays  the  court  that  the  said , 

a?  such  administrator,  give  an  additional  bond  to  be  approved 
by  Your  Honor  to  take  care  of  all  persons  interested  in  said 
estate,  whether  creditors  or  distributees. 

Wherefore,  petitioner  prays'  that  the  said  administrator, 

,  be  cited  to  appear  at  the term, 

19.  . .  .,  of  this  Honorable  Court,  to  show  cause,  if  any  he  has 
or  can,  why  the  prayer  of  your  petitioner  should  not  be  had  and 
allowed. 

Petitioner. 


ORDER. 

Office  of  Ordinary  of County. 

At  Chambers, day  of ,  19.  ... 

The  foregoing  petition  of has  been  read  and 

considered : 

It  is  ordered  that  the  said ,  administrator 

of ,  late  of  said  county,  deceased,  be,  and  he  is, 

hereby  cited  to  appear  and  show  cause  at  the term, 

19.  .  .  .,  of  this  court,  why  the  prayer  of  the  petition  should  not 
be  had  and  allowed. 

Let  him  be  served  with  a  copy  of  the  petition  and  this  order 
at  least  ten  days  before  the term  of  this  court. 

This day  of ,  19 

Ordinary  of County. 


212  ADMINISTRATORS  AND  EXECUTORS 

RULE  NISI. 


Office  of  the  Ordinary  of County. 

,  Georgia,   ,  19 .... 

,  having  applied  to  me  by  petition  to  be 

relieved  as  surety  upon  the  bond  of ,  as 

administrator  of  the  estate  of ,  late  of  said 

county,  deceased,  upon  the  grounds  and  for  the  reasons  set  out 
in  said  petition; 

It  is  ordered  that be  served  at  once  with  a 

copy  of  said  petition  and  this  order,  and  he  is  hereby  cited  to 

appear  at  the term,  19.  .  .  .,  of  this  court,  and  show 

cause  if  any  he  has,  or  can,  why  the  prayer  of  said  petition 
should  not  be  had  and  allowed. 


Ordinary. 


RULE  ABSOLUTE. 


,  surety 


Application  to  be  relieved  as 
surety    upon    the    bond    of 
.  .  as    adminis- 


vs.  £ 

j    •   •  ,  >     trator   01 

administrator 

of ,    deceased.         deceased' 

Term,   19... 

day  of ,  19... 

The  above  named  and  stated  case  coming  on  for  a  hearing 
and  the  allegations  in  the  petition  having  been  sustained  by 
evidence : 

It  is  ordered  that ,  as  surety  upon  the  bond 

of  the  respondent, ,  as  administrator  of  the 

estate  of ,  deceased,  be,  and  he  is,  hereby 

relieved  and  discharged  as  surety  upon  said  bond  from  any  other 
and  further  liability  thereon. 

It  is  further  ordered  that  the  said give  other 

and  further  sufficient  security  on  s'aid  bond,  or,  in  default 


ADMINISTEATORS  AND  EXECUTOES  213 

thereof,  that  he  be  discharged  from  his  trust;  the  same  to  be 
done  within  ten  days  from  this  date. 

Ordinary. 


Attestation.    Approval  on  minutes  sufficient,  though  bond  not  attested. 

43/340. 
Failure  to  recite  giving  of  bond,  in  order  appointing  administrator,  not 

invalidate.    72/725. 
Name  of  deceased  misrecited,  not  invalidate  bond.     85/555   (11  S.  E. 

616). 


III.— SALES  BY  ADMINISTRATOR.     §§4021-4039. 


PERISHABLE  PROPERTY,  SALE  OF.     §§4021-4023. 


APPLICATION  FOR  LEAVE  TO  SELL. 


Georgia, County. 

To  the  Ordinary  of  said  county : 

The  petition  of ,  administrat.  .  .of  the  estate  of 

,  late  of  said  county,  deceased,  shows  that  certain 

personal  property  of  said  estate  is'  of  a  perishable  nature,  and 
likely  to  waste  or  deteriorate  in  value,  and  that  it  is  consistent 
with  the  interest  of  said  estate  that  said  property  be  sold  at  as 
early  a  day  as  practicable.  Petitioner  therefore  prays  an  order 

authorizing to  sell  said  property. 

,  Petitioner. 


ORDER  GRANTING  LEAVE  TO  SELL.    §4022. 


Court  of  Ordinary. 

At  Chambers,  this'.  .  .day  of ,  19.  ... 

Upon  reading  and  considering  the  petition  of , 

administrat.  .  .on  the  estate  of ,  deceased,  for 

leave  to  sell  the  personal  property  of  said  estate,  and  it  appearing 
that  said  property  is  of  a  perishable  nature,  and  likely  to  waste 
and  deteriorate  in  value,  and  that  it  is  consistent  with  the  inter- 
est of  said  estate  that  said  property  should  be  sold  at  as  early  a 
day  as  practicable,  it  is 'ordered  that  said  administrat.  .  .bo, 
and  is,  hereby  granted  leave  to  sell  the  said  property,  at  public 
outcry,  between  the  hours  of  ton  o'clock,  a.  m.,  and  four  o'clock, 


214:  ADMINISTRATORS  AND  EXECUTORS 

p.  m.,  after  giving  notice  of  such  sale  by  written  or  printed 
advertisements  for  at  least  ten  days,  at  the  three  or  more  public 
places  in  said  county. 


,,  Ordinary. 


NOTICE  OF  SALE. 


Georgia, County. 

By  virtue  of  an  order  of  the  court  of  ordinary  granted  at 

chambers ,  19.  .  .  .,  will  be  sold  at  public  outcry 

at on the day  of ,  19 .  .  .  . , 

within  the  legal  hours  of  sale,  the  following  personal  property 
of  the  estate  of ,  deceased,  to  wit : 


Terms 

Administrator. 


TEMPORARY  ADMINISTRATOR,  APPLICATION  BY,  FOR  LEAVE  TO 
SELL  PERISHABLE  PROPERTY. 


Georgia,  ............  County. 

To  Honorable  ...............  ,  Ordinary  of  said  County  : 

The  petition  of  ..............  ,  temporary  administrator  of 

the  estate  of  ................  ,  late  of  said  county,  deceased, 

shows  that  certain  personal  property,  consisting  of  ........... 

.....  a  ..............................................  > 

belonging  to  the  estate  of  said  deceased,  is  of  a  perishable  nature, 
and  is  likely  to  deteriorate  in  value,  and  that  it  is  to  the  interest 
and  advantage  of  the  estate  that  said  property  be  sold.     Your 
petitioner  prays  for  an  order  authorizing  ............  to  sell 

said  property. 

............................  ,  Petitioner. 

............  Court  of  Ordinary. 


Upon  reading  and  considering  the  foregoing  application,  it  is 
ordered  that  said  ...............  ,  temporary  administrator, 


ADMINISTRATORS  AND  EXECUTORY  215 

have  leave  to  sell  the  personal  perishable  property  belonging  to 

the  estate  of ,  deceased,  after  giving  notice  of 

such  sale  by  written  advertisement  for  ten  days  at  three  or  more 

public  places  in  said  county  (and  in  the ,  published 

in  said  county). 

,  Ordinary. 


APPLICATION  FOR  LEAVE  TO  SELL  PERSONAL  PROPERTY. 


Georgia, County. 

To  the  Honorable ,  Ordinary  of  said  County : 

The  petition  of ,  administrator  of  the  estate 

of ,  deceased,  shows  that  it  is  necessary  for  the 

purpose  of  paying  the  debts  and  making  division  among  the 
heirs  of  said  deceased  to  sell  the  personal  property  belonging  to 
said  estate. 

Petitioner  therefore  prays  an  order  authorizing 

to  sell  said  personal  property. 

Said  personal  property  consists  in. 

This day  of ,  19 

,  Petitioner. 

Court  of  Ordinary. 

Upon  reading  and  considering  the  foregoing  application,  it  is 

ordered  that  said ,  administrator,  have  leave  to 

sell  the  personal  property  belonging  to  the  estate  of , 

deceased,  after  giving  notice  of  such  sale  by  written  advertise- 
ment for  ten  days  at  three  or  more  public  places  in  said  county 

(and  in  the ,  published  in  said  county). 

,  Ordinary. 


NOTICE  OF  SALE  OF  PERSONAL  PROPERTY. 


Georgia, County. 

By  virtue  of  an  order  of  the  court  of  ordinary  of  said  county, 

granted  at  the Term,  19.  .  .  .,  will  be  sold  before  the 

court-house  door  of  said  county,  on  the  first  Tuesday  in , 

next,  within  the  legal  hours  of  sale,  the  following  property  of 


216                   ADMINISTRATORS  AND  EXECUTORS 
the  estate  of ,  deceased,  to  wit : .  .  . 


Terms 

Administrator. 


BILL  or  SALE  OF  PERSONAL  PROPERTY  SOLD  BY  ADMINISTRA- 
TOR. AT  PUBLIC  SALE. 


Received,  this ....  day  of ,  19 .  .  . ,  from , 

the  sum  of dollars,  in  payment  of ; 

sold  as  the  property  of ,  late  of  said  county,  by 

me,  as  administrator  of ,  in  pursuance  of  an 

order  of  the  court  of  ordinary  of county,  on  the  first 

Tuesday  in ,  19 .  .  .  . ,  at  the  usual  place  of 

public  sale  in  said  county,  between  lawful  sale  hours,  s'aid .... 

being  then  and  there  the  highest  and  best  bidder 

for  the  same.     In  witness  whereof  I  have  hereto  set  my  hand 
and  seal. 

: [L.  S.] 

As  administrator  of 

Signed,  sealed  and  delivered  in  presence  of 


INSOLVENT  PAPERS. 


APPLICATION  FOR  LEAVE  TO  SELL  INSOLVENT  PAPERS.     §4025. 


Georgia, County. 

To  the  Ordinary  of  said  county : 

The  petition  of .,  as  administrator  of  the 

estate  of ,  deceased,  shows  that,  after  due  dili- 
gence, the  following  described  evidences  of  debt  due  the  estate 
of  said  deceased  remain  uncollected,  and  are  deemed  insolvent 
or  doubtful,  to  wit : 

Wherefore,  petitioner  prays  an  order  authorizing 

to  sell  said  evidences  of  debt  as  insolvent  papers. 

Administrator. 


ADMINISTRATORS  AND  EXECUTORS  217 

AFFIDAVIT  OF  ADMINISTRATOR. 


In  open  court  came ,  administrator  of  t)ie 

estate  of ,  and  being  duly  sworn  says'  the  facts 

stated  in  the  above  petition  are  true. 

Administrator  of 

Sworn  to  and  subscribed  before  me  this 

day  of ,  19 

,  Ordinary. 


ORDER  OF  COURT. 


Upon  reading  and  considering  the  foregoing  application,  it 

is  ordered  that  said  petitioner  be, is,  hereby  granted 

leave  to  sell  said  papers,  in  the  manner  prescribed  by  law. 

,  Ordinary. 


ADVERTISEMENT  OF  SALE  OF  INSOLVENT  OR  DOUBTFUL  NOTES. 
ADMINISTRATOR'S  SALE. 


/ 

Take  notice,  that  I,  as  administrator  of  the  estate  of , 

late  of county,  Georgia,  deceased,  will  sell  at  the  court- 
house door  in  said  county,  between  the  lawful  hours  of  sale,  to 

the  highest  bidder,  on  the day  of ,  19.  .  .  ., 

in  pursuance  of  the  order  of  the  Court  of  Ordinary  of  said 
county,  the  following  notes,  considered  by  me  as  insolvent,  and 
so  adjudged  by  said  court,  to  wit,  (specify  the  note  or  notes'). 
Terms  of  sale : 

Administrator. 


RETURN  OF  SALE  OF  INSOLVENT  OR  DOUBTFUL  NOTES. 


,  administrator  of .  : ,  returns 

to  the  Court  of  Ordinary  as  proceeds  of  his  sale  of  insolvent  or 
doubtful  notes  of and ,  on  the  first 


218 


ADMINISTRATORS  AND  EXECUTOKS 


Tuesday  in ,  19 .  .  .  . ,  the  sum  of dollars. 

Said  notes'  being  as  follows  (here  describe  them). 

Administrator  of 

Subscribed  and  sworn  to  before  me  this 

,19.... 

,  Ordinary. 

Court  of  Ordinary. 

Term,  19 

The  return  of ,  administrator  of , 

to  this  court,  of  his  sale  of  insolvent  or  doubtful  notes  of  said 

,  being  in  open  court,  and  considered  by  the  court, 

ordered  that  the  same  be  allowed,  and  in  the  settlement  of  the 

estate  of  said ,  that  he  be  charged  with  the 

proceeds  of  said  s'ale,  instead  of  the  amount  called  for  by  notes 
so  sold. 

,  Ordinary. 

ACCOUNT  OF  SALE  OF  PERSONALTY. 

Account  sale  of  personalty  of  the  estate  of , 

deceased.     Sold  by ,  administrator  of  said  estate, 

after  due  and  legal  advertisement,  on  the day  of 

,  19 .  . .  . ,  between  the  legal  hours  of  sale,  at 

public  outcry,  at 

pursuant  to  order  of  the  Court  of  Ordinary  of 

County,  the  terms  of  such  sale  being 

Property  Sold  Purchaser  Price 

Georgia, County. 

Personally  before  me  came ,  administrator  of 


ADMINISTRATORS  AND  EXECUTORS  219 

the  estate  of ,  who,  being  duly  sworn,  says  that 

the  within  and  foregoing  sale  bill  is  just,  true,  and  correct. 

Administrator. 
Sworn  to  and  subscribed  before  me 


Ordinary. 


APPLICATION  FOR  LEAVE  TO  SELL  LAND.     §4026. 


Georgia, County. 

To  the  Hon ,  Ordinary  of  said  County : 

The  petition  of ,  as  administrator  of  the 

estate  of ,  late  of  said  county,  deceased, 

shows : 

That  the  real  estate  of  said  deceased  consists  of  lots  of  land, 

lumbers , and ,  in  the district, 

and section  of county,  each  lot  containing 

......  acres,  more  or  less ;  and  that  for  the  purpose  of  paying 

debts  and  distribution,  it  is  neces'sary  to  sell  said  lands. 

Wherefore,  petitioner  prays  for  an  order  of  citation,  and  that 
citation  issue  calling  upon  the  creditors  and  heirs  'at  law  of 

,  to  be  and  appear  at  the term,  19.  . .'. , 

of  the  court  of  ordinary  of county,  to  show  cause,  if 

any  they  have  or  can,  why  the  leave  to  sell  said  lands  shall  not 
be  had  and  allowed. 

Administrator  of ,  deceased, 

Petitioner. 


ORDER  FOR  CITATION. 


Court  of  Ordinary. 

Term,  19 

The  application  of ,  as  administrator  of 

,  deceased,  to  sell  the  real  estate  of  said 

intestate,  coming  on  for  a  hearing: 

It  is  considered,  ordered  and  adjudged  that  an  order  of  cita- 
tion be  and  the  same  is  hereby  made,  and  that  citation  issue  and 
be  published,  as  required  by  law,  calling  upon  the  next  of  kin 


220  ADMINISTRATORS  AND  EXECUTORS 

and  creditors  of  said ,  deceased,  to  show  cause, 

if  any  they  have  or  can,  at  the term,  19.  .  .  . ,  of  the 

court  of  ordinary  of county,  why  the  leave  prayed 

for  should  not  be  granted. 

Ordinary. 


CITATION.     §4026. 


Georgia, County. 

To  whom  it  may  concern : 

Notice  is  hereby  given  that ,  as  administrator 

of ,  deceased,  having  applied  to  me  by  petition 

for  leave  to  sell  the  real  estate  of  said ,  deceased; 

and  that  an  order  was  made  thereon  at  the term,  19.  .  . , 

for  citation,  and  that  citation  issue;  all  the  heirs  at  law  and 

creditors  of  the  said ,  deceased,  will  take  notice 

that  I  will  pass  upon  said  application  at  the term,  19 .  . . , 

of  the  court  of  ordinary  of county;  and  that  unless 

cause  is  shown  to  the  contrary,  at  said  time,  said  leave  will  be 
granted.     This day  of ,  19.  ... 

Ordinary. 


ORDER  GRANTING  LEAVE  TO  SELL  REAL  ESTATE.     §4026. 


In  re  Application  ^ 

of ,    as  I Court  of  Ordinary, 

administrator  of ,  f  Term,  19 .... 

deceased,  to  sell  real  estate.  J 

The  above  named  and  stated  matter  coming  on  for  a  hearing, 
and  it  appearing  that  an  order  for  citation  was  made,  and  that 
citation  issued,  which  has  been  published  as  the  law  requires, 
and  no  cause  being  shown  to  the  contrary,  and  no  objections 
being  made; 

It  is  considered,  ordered  and  adjudged  that , 

as  administrator  of  the  estate  of ,  late  of  said 

county,  deceased,  be,  and  he  is,  hereby  granted  leave  to  sell  the 

real  estate  of  said ,  deceased,  which  is  as  follows, 

to  wit :  lots  of  land,  numbers ,  and in  the 

district  and section  of county, 


ADMINISTRATORS  AND  EXECUTORS  ,221 

I 

Georgia,  each  of  said  lots  containing  forty  acres,  more  or  less. 
Said  sale  to  be  made  and  had  according  to  the  law  in  such  cases 
made  and  provided.  This day  of ,  19.  ... 

Ordinary. 


ADVERTISEMENT  BY  ADMINISTRATOR  FOR  SALE  OF  LAND.  §4028. 


By  virtue  of  an  order  from  the  court  of  ordinary  of  ....... 

county,  will  be  sold,  at  public  outcry,  on  the  first  Tuesday  in 
............  ,  19.  .  .  .,  at  the  court-house  door  in  said  county, 

between  the  legal  hours  of  sale,  the  tract  of  land  in  said  county 
(describe  the  land),  containing  .........  acres,  more  or  less. 

A  credit  of  ............  months  will  be  allowed  to  purchasers, 

giving  their  notes  well  secured  for  their  purchases. 


, 


Administrator  of. 


CAVEAT  TO  APPLICATION  OF  ADMINISTRATOR  TO  SELL  LAND. 


,   applicant!   In  the  Court  of  Ordinary  of 

vs.  f       county, 

,  caveator'        Term,   19 .... 

Now  comes ,  one  of  the  heirs  at  law,  and  a 

son  of ,  late  of  said  county,  deceased,  at 

this term,  19.  .  .  .,  of  the  court  of  ordinary  of 

county,  and  caveats  the  application  of , 

administrator,  asking  for  leave  to  sell  the  lands  of , 

late  of  said  county,  deceased,  and  for  grounds'  of  objection,  says : 

1.  Said left  no  debts,  and  the  said  admin- 
istrator,   ,  has  sold  and  disposed  of  the  personal 

property  of  the  said.  ......  ...  .  .  ;  and  that  after  paying  the 

funeral  expenses  and  doctors'  bills  of  the  said ,  and 

after  placing  a  suitable  monument  over  the  grave  of  the  said 

,  there  still  remains  in  the  hands  of  the  said 

,  as  administrator,  a  sum  of  money  belonging 

to  said  estate  in  the  amount  of dollars,  or  other  large 

sum,  and  that  for  these  reasons,  it  is  not  necessary  to  sell  said 
lands  for  the  paying  of  debts ;  and  that  each  and  all  of  the  heirs 


222  ADMINISTRATORS  AND  EXECUTORS 

of  the  s'aid have  agreed  upon  a  distribution  in 

kind  of  the  said  real  property,  and  that  for  this  reason,  there  is 
no  necessity  to  sell  said  lands,  and  the  said  administrator  has 
no  right  to  said  order  divesting  the  title  of  the  heirs  at  law  to 
the  said  real  property,  and  for  this  reason,  the  said  order  applied 
for  should  be  refused. 

2.  Caveator  further  shows  that  the  debts  of  the  estate  having 
been  paid,  that  the  title  to  said  real  property  is  in  the  heirs,  and 
that  the  said  administrator  has  no  right  to  sell  the  same  for 
distribution,  and  the  s'aid  administrator  has  no  concern  therein 
or  therewith,  and  for  this  reason  said  application  should  be 
refused. 

Caveator. 


ORDER  OVERRULING  CAVEAT  TO  APPLICATION  TO  SELL. 


Court  of  Ordinary  of County. 

..Term,  19.. 


, ,   applicant 


vs. 


,,  caveator 


Application  of , 

as  administrator  of , 

late  of  said  county,  deceased, 
to  sell  the  land  of  the  said 
deceased. 

The  above  named  and  stated  case  coming  on  for  hearing,  and 

the  application  therein  having  been  caveated  by , 

upon  objections  set  out  in  his1  caveat,  and  after  hearing  evidence 
therein  and  considering  the  same : 

It  is  ordered  and  determined  that  said  objections  be  not  sus- 
tained, and  the  same  are  hereby  overruled ; 

And  it  is  further  ordered  that  the  said ,  as 

administrator  of  the  estate  of  the  said ,  late  of 

said  county,  deceased,  having  filed  his1  petition  and  application 
to  me  for  leave  to  sell  said  lands,  and  an  order  having  been  made 
for  citation  therein,  and  citation  having  issued  and  published  as 
required  by  law,  leave  to  sell  said  lands  as  prayed  for  be,  and 
the  same  is,  hereby  granted,  said  lands  being  described  as'  fol- 
lows, to  wit:  Lots  of  land,  Nos , and ,  in 

the district  and section  of County, 

each  lot  containing  forty  acres,  more  or  less,  and  the  said 


ADMINISTRATORS  AND  EXECUTORS 

,  administrator,  will  first  advertise  said  lands' 

according  to  law,  previous  to  sale. 

Ordinary. 


APPEAL  TO  THE  SUPERIOR  COURT. 


In  the  Court  of  Ordinary  of 
County, 

Term,  19.  .. 

,  applicant,                    . 
vs  I  Application  by ,  as 

caveator.         administrator  of , 

late  of  said  county,  deceased, 
to  sell  the  lands  of  the  de- 
ceased. 

Now  comes ,  the  caveator  in  the  above  named 

and  stated  case,  and  being  dis'satisfied  with  the  judgment  of  the 
Ordinary  rendered  therein,  which  was  adverse  to  him,  and 
having  paid  all  the  costs  that  have  accrued  in  said  case,  and 

now  on  this day  of ,  19.  .  .  .,  within  the 

time  prescribed  by  law,  enters  this  his  appeal  to  the  Superior 

Court,  and  brings as  his  security,  and  they, 

,  principal,  and ,  as  security, 

acknowledge  themselves  held  and  firmly  bound  unto  the  appellee, 

,  as  administrator,  of  the  estate  of .......... 

late  of  said  county,  deceased,  for  such  further  costs  as  may 
accrue  by  reason  of  such  appeal  in  said  case.  Signed  with  our 

hands  and  sealed  with  our  s'eals,  this  the day 

of ,  19 

(L.  S.) 

Principal. 

...(L.  S.) 

Security. 

Executed  in  the  presence  of,  and  approved 
by  me,  this ....  day  of ,  19 ... 


Ordinary. 

I  hereby  certify  that ,  the  appellant,  has 

paid  all  of  the  costs  that  have  accrued  in  said  case  appealed, 
to  wit,  the  sum  of dollars  and cents,  and  that 


224  ADMINISTRATORS  AND  EXECUTORS 

the  appeal  bond  was  filed,  and  appeal  entered  this day 

of ,  19 

Ordinary  of County. 


APPEAL  IN  FORMA  PAU  PERIS. 


,  applicant,  1  Georgia,   County. 

vs.  r  Court  of  Ordinary,   

,    caveator.  * Term,   19 .... 

Application  by ,  as  administrator  of  the 

estate  of ,  late  of  said  county,  deceased,  to  sell  lands 

of  deceased,  and  order  granted  by  Ordinary  the day 

of ,  19 

Before  me,  ,  Ordinary  of  said  county, 

personally  came ,  who,  being  duly  sworn,  on 

oath  says  that  he  is  dissatisfied  with  the  judgment  rendered 
against  him  in  the  above  named  and  stated  case,  and  that  on 

this  the.  .  .  .day  of ,  19.  .  .  .,  he  enters  his  appeal 

in  said  case  to  the  superior  court ;  and  affiant  on  oath  says  that 
I  am  advised  and  believe  that  I  have  good  cause  of  appeal,  and 
that  owing  to  my  property,  I  am  unable  to  pay  the  costs  or  give 
the  security  required  by  law  in  cases  of  appeal. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


Ordinary. 


APPEAL  BY  CONSENT. 


,  administrator  I   In    the    Court    of    Ordinary, 

vs.  County, 

,  caveator-'    ,  19 .... 

Both  parties  consenting  thereto  in  open  court,  and  waiving 
the  judgment  of  the  court  on  the  matter  in  dispute  in  said  case, 
it  is  ordered  by  the  court  that  said  case  be  appealed,  by  consent, 
to  the  superior  court,  and  it  is  ordered  that  the  clerk  of  this 


ADMINISTRATORS  AND  EXECUTORS  225 

court  transmit  to  said  superior  court  in  due  form  all  the  papers 
relating  to  said  case  and  this  appeal. 

Ordinary. 


ADVERTISEMENT  FOR  ADMINISTRATOR'S  SALE. 


Georgia, County. 

By  virtue  of  an  order  of  the  court  of  ordinary  of 

county,  granted  upon  the  application  of ,  as 

administrator  of  the  estate  of ,  deceased,  late  of 

said  county,  to  sell  the  lands  of  the  said ,  deceased, 

for  the  purpose  of  paying  debts  and  distribution,  there  will  be 
sold  before  the  court-house  door,  at  public  outcry,  to  the  highest 

bidder,  in  the  city  of ,  between  the  legal  hours  of 

sale,  on  the  first  Tuesday  in ,  19.  .  .  .,  as  the 

property  of  the  said  deceased,  the  following  described  lands, 

to  wit :     Lots  of  land,  numbers ,   and in 

the district   and section   of county, 

each  lot  containing  forty  acres,  more  or  less,  terms  of  sale,  cash. 
This day  of ,  19 

Administrator  of ,  deceased. 


APPLICATION  BY  ADMINISTRATOR  TO  SELL  WILD  LANDS. 

§4024. 


Georgia, County. 

To  the  Honorable ,  Ordinary  of  said  County : 

The  petition  of ,  as  administrator  of  the 

estate  of ,  late  of  said  county,  deceased,  shows: 

1st.      That in  his  life  time  owned  certain 

wild  and  uncultivated  lands,  as  follows:     Lot  of  land  number 

in  the district  and section  of 

county,  containing acres',  more  or  less;  lot  of  land 

number in  the district  and section  of 

county,  containing acres,  more  or  less ;  and  lot  of  land, 

number in  the district  and section  of 

county,  containing acres,  more  or  less. 

2nd.     Petitioner  shows  that  said  lands  lie  outside  of 

county,  the  county  of  administration. 


226  ADMINISTRATORS  AND  EXECUTORS 

3rd.  Petitioner  shows  that  it  would  be  preferable  to  sell 
lands  at  private  sale ;  that  it  would  be  to  the  advantage  of  said 
estate  so  to  do,  and  for  this  reason  he  asks  the  granting  of  a 
proper  order  for  such  sale. 

Wherefore,  petitioner  prays  that  an  order  of  citation  be  made, 
and  that  citation  issue  calling  upon  the  heirs  at  law  and  creditors' 

of  the  said to  show  cause,  if  any  they  have  or  can, 

at  the term,  19.  . .  .,  of  the  court  of  ordinary  of 

county,  why  such  leave  should  not  be  granted  as 

prayed  for. 

Administrator  of ,  deceased. 


ORDER  FOR  CITATION  TO  ISSUE. 


Court  of  Ordinary, County. 

Term,  19 

The  petition  of ,  as  administrator  of , 

deceased,  having  been  filed  and  coming  on  for  a  hearing,  it  is 
ordered  that  citation  issue  and  be  published  as  the  law  directs. 
This ,  19.... 

Ordinary. 


CITATION. 

Georgia, County. 

To  whom  it  may  concern : 

Notice  is  hereby  given  that ,  as  administrator 

of ,  deceased,  has  filed  in  the  Court  of  Ordinary 

a  petition  asking  leave  to  sell  certain  wild  and  uncultivated 
lands  of  deceased.     The  heirs  at  law  and  creditors  of  the  said 

,  deceased,  will  take  notice  and  show  cause  before 

me  in  the  court  of  ordinary  of county  at  the 

term,  19.  .  .  .,  if  any  cause  they  have  or  can,  why  said  order 
should  not  be  granted  as  prayed  for.     This ,  19.  ... 

Ordinary. 


ADMINISTRATORS  AND  EXECUTORS  227 

ORDER  GRANTING  LEAVE  TO  SELL  WILD  LANDS.     §4024. 


Court  of  Ordinary. 

Term,  19 

In  re  application  of ,  administrator  of , 

deceased,  to  sell  wild  lands: 

The  application  of ,  as  administrator  of  the 

estate  of ,  late  of  said  county,  deceased,  to  sell 

certain  wild  lands  at  private  sale,  coming  on  for  a  hearing  and 
there  being  no -objection  filed  thereto,  it  is  considered,  ordered 
and  adjudged  that  the  said  private  sale  of  said  lands  is  prefera- 
ble and  to  the  interest  of  said  estate,  and  the  said 

is  hereby  granted  leave  to  sell  the  wild  lands  of  said  estate  at 
private  sale,  the  said  lands  being  as  follows:  (Describe  lands 
as  in  application  to  sell),  and,  to  make  deed  and  title  thereto  as 

fully  and  completely  as  the  said ,  deceased,  could 

have  done  in  his  life  time. 

Ordinary. 


LANDS  DIVIDED  BY  COUNTY  LINES,  APPLICATION  FOR  SALE  OF. 

§4031. 


Georgia, County. 

To  the  Ordinary  of  said  County: 

The  petition  of ,  administrator  of , 

shows  that ,  late  of  said  county,  at  the  time  of  his 

death,  on  the day  of ,  19 .  . .  . ,  owned  a 

valuable  tract  of  land,  divided  by  the  county  lines  of  said  county 
and  the  county  of ,  described  as  follows : 


that  it  is  necessary  to  sell  land  for  the  payment  of  debts  and 
distribution ;  that  he  wishes  an  order  to  sell  said  land  in  either 
county,  as  may  be  most  advantageous  to  the  creditors  and  heirs 

of  said ,  therefore  your  petitioner  prays  that  a 

citation  may  issue,  as  is  usual  in  cases  of  application  to  sell  real 


228  ADMINISTRATORS  AND  EXECUTORS 

estate,  calling  upon  all  persons  interested  to  show  cause  why  he 
should  not  have  leave  to  sell  said  tract  as  prayed  for. 
This day  of 19 

Administrator  of 

Court  of  Ordinary, County. 

..Term,  19 

The  foregoing  petition  being  filed  with  me,  and  it  appearing 
that  the  citation  as  prayed  for  should  be  granted,  ordered  that 
the  citation  issue,  as  usual,  except  as  to  the  mode  of  sale,  and 
as  to  that  the  citation  issue  requiring  all  persons  concerned  to 
show  cause,  at  the  time  of  hearing  the  citation,  why  a  sale  may 
not  be  in  either  county,  as  the  administrator  may  deem  best. 

Ordinary  of County. 


[NOTE:     The  citation  should  be  published,  and  the  order  for  leave  to 
sell  granted  at  a  regular  term,  fully  describing  the  lands.] 


PROPERTY  HELD  ADVERSELY.     §4033. 


§4033.     "An  administrator  can  not  sell  property  held  ad- 
versely to  the  estate  by  a  third  person;  he  must  first  recover 


possession." 


CLAIM  TO  LAND  ORDERED  TO  BE  SOLD.     §§4034,  5176-5179. 


Georgia, County. 

Personally  appeared  before  the  undersigned, , 

who,  being  sworn,  says,  that  a  certain  tract  of  land,  to  wit,  lot 
number in  the district  of  said  county,  contain- 
ing  acres  (for  which  an  order  of  sale  has  been  obtained 

from  the  Court  of  Ordinary  of  said  county,  by , 

administrator  upon  the  estate  of ,  deceased),  and 

which  tract  of  land  is  advertised  by  the  administrator  to  be  sold 

on  the day  of ,  19 .  .  .  . ,  is  not  the  property  of 

the  estate  of  the  deceased,  but  is  the  property  of  deponent. 
Sworn  before  me  this 19 .. 


ADMINISTRATORS  AND  EXECUTORS  229 

CERTIFICATE  OF  ORDINARY. 


I  do  hereby  certify  that  the  within  claim  of was 

filed  in  the  court  of  ordinary  of county , 

19...-,  by .. 

Given  under  my  hand  and  official  signature,  this 

day  of '. ,19 

,  Ordinary. 


SERVICE  OF  ADMINISTRATOR. 


Served  a  copy  of  the  within  claim  on ,  admin- 
istrator of ,  this day  of ,  19.  . .  ., 

by  handing  the  same  to  him  in  person. 

Sheriff  of County. 


ADMINISTRATOR'S  DEED.     §§4030,  4032. 


Georgia,   County. 

This  indenture,  made  and  entered  into,  this  the day 

of ,  in  the  year  19 ...  .^  between , 

the  duly  constituted  and  appointed  administrator  of , 

late  of  said  county,  deceased,  of  the  first  part,  and , 

of  said  county,  of  the  second  part,  witnesseth : 

That  heretofore  on  the  first  Monday  in , 

nineteen  hundred  and ,  upon  the  application  of  the 

party  of  the  first  part,  and  after  an  order  for  citation  to  issue, 
and  the  publication  of  the  citation  according  to  law  in  such 

case,  the  Honorable  Court  of  Ordinary  of county 

granted  to  party  of  the  first  part  leave  to  sell  the  lands-  of 

,  late  of  said  county,  deceased,  for  the  purpose  of 

paying  debts  and  distribution.  And  after  the  granting  of  the 
said  order,  the  said  party  of  the  first  part  advertised  the  sale 
of  said  lands  herein  conveyed  once  a  week  for  four  weeks,  pre- 
vious to  the  first in ,  19 .  .  .  . ,  in  the 

,  the  newspaper  in  which  the  county  advertise- 
ments of county  are  published,  and  that  on  the 

day  of ,  19 .  .  .  . ,  between  the  legal  hours 

of  sale  on  said  day,  the  said  party  of  the  first  part  did  put  up 
and  expose  for  sale  the  lands  hereinafter  conveyed  by  public 


230  ADMINISTBATOKS  AXD  EXECCTORS 

outcry  to  the  highest  bidder,  when  and  at  which  time,  the  said 

party  of  the  second  part, ......  being  the  highest  and 

best  bidder,  for  and  at  the  sum  of dollars,  the 

said  lands  were  knocked  off  to  him  as  the  purchaser  at  said  sale. 

Now,  therefore,  in  consideration  of  the  premises,  and  in  the 
further  consideration  of  the  sum  of dollars  pur- 
chase money  in  hand  paid,  at  and  before  the  sealing  and  delivery 
of  these  presents,  receipt  whereof  is  hereby  acknowledged,  the 
said  party  of  the  first  part  has  sold,  bargained  and  conveyed, 
and  by  these  presents  does  sell,  bargain  and  convey,  unto  the 

said ,  his  heirs  and  assigns,  all  that  tract  or  parcel 

of  land  situated,  lying  and  being  in  the  county  of ,  and 

described  upon  the  plan  or  map  of  said  county  as  lots  of  land, 

numbers ,  and ,  in  the district 

and section  of  said  county,  each  of  said  lots  containing 

forty, acres,  more  or  less,  together  with  all  the  rights,  members 
and  appurtenances  thereunto  belonging,  or  in  any  wise  apper- 
taining, to and  his  proper  use,  benefit  and 

behoof  forever.  To  have  and  to  hold  the  same  to  the  said 

,  his  heirs  and  assigns  in  as  full  and  ample  a 

manner  as  the  same  was  possessed  or  enjoyed  by  the  said 

,  deceased,  in  his  life  time. 

In  witness  whereof,  the  said  party  of  the  first  part  has  here- 
unto set  his  hand  and  affixed  his  seal,  the  day  and  year  first 
above  written. 

.-; (L.   S.) 

Administrator  of ,  deceased. 

Signed,  sealed  and  delivered  in  the 
presence  of: 


J.  P. 


ACCOUNT  OF  SALES. 


Georgia, County. 

To  the  Ordinary  of  Said  County  : 

Account  sales  of  real  estate  and  personal  property  of  the 

estate  of ,   deceased,   by , 

administrator  of  said  estate.     Sold  on  first  Tuesday  in 

19.. 


ADMINISTRATORS  AM>  EXECUTORS  231 

(Specify  the  property  sold  the  purchasers,  and  the  amount, 
together  with  the  terms  of  sale.) 


Terms  of  sale : 


Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 

Ordinary. 


Blanks  in  deed.  Where  administrator  executed  deed  and  left  blanks 
for  names  of  grantees  to  be  afterwards  filled  in  by  attorney  em- 
ployed by  heirs  to  represent  estate,  and  where  such  names  were 
filled  in  before  delivery  of  deed  to  purchasers,  who  were  ignorant 
of  circumstances  attending  its  execution,  deed  operated  to  pass  title 
of  grantor  to  grantees.  144/1  (3)  (85  S.  E.  1007). 

Caveat  to  application  for  leave  to  sell,  what  sufficient.  117/113  (43 
S.  B.  423). 

Order,  sufficiency  of  description  of  land  in.  47/195.  Sufficient  here  to 
put  on  inquiry  as  to  size  of  lot  of  land.  69/506.  Recitals  necessary 
in  order  for  sale  by  administrator  d.  b.  n.  c.  t.  a.  8/236.  Particular 
lots  should  be  described.  4/152. 

Petition  of  administrator  for  order  to  sell  should  set  forth  that  sale  is 
necessary  for  payment  of  debts  or  for  purpose  of  distribution,  but 
omission  of  such  allegation  is  amendable  defect,  cured  by  judgment 
granting  leave  to  sell.  145/102  (3-a)  (88  S.  E'.  682). 

Recitals  in  deed.  Order  of  sale  must  be  produced;  recital  in  deed  not 
sufficient.  40/479.  Notice  in  ordinary's  order  as  having  been  -given 
by  administrator,  need  not  be  stated  in  deed.  16/67.  When  power 
to  sell  proved,  presumed  from  recitals  that  prescribed  forms  fol- 
lowed. 40/482.  Mere  recitals  in  deed  that  order  to  sell  was  granted 
is  not  sufficient.  141/419  (2)  (81  S.  E.  196). 

Title.  Administrator's  deed,  made  pursuant  to  sale  under  order,  is 
inadmissible  as  muniment  of  title,  unless  accompanied  with  order. 
141/653,  654  (3)  (81  S.  E.  1119). 


IV.— ADMINISTRATION    AND    DISTRIBUTION    OF 

ESTATES— PAYMENT  OF  DEBTS— YEAR'S 

SUPPORT.     §§3997-4015,  4040-4061. 


RULES  OF  DISTRIBUTION.     §4040. 


§4040.     "After  the  payment  of  expenses  of  administration 
and  the  debts  of  the  deceased,  the  balance  of  the  estate,  both  real 


232  ADMINISTEATORS  AND  EXECUTORS 

and  personal,  stands  subject  to  distribution  among  the  heirs  at 
law  of  the  deceased,  according  to  the  relationship  hereinbefore 
prescribed." 


YEAR'S  SUPPORT.     §§4041-4051. 


PETITION  FOR  APPOINTMENT  OF  APPRAISERS.     §4041. 


Georgia, County. 

To  the  Honorable ,  Ordinary  of  said  County : 

The  petition  of respectfully  shows  that 

,  late  of  said  county,  departed  this  life  on  the 

day  of ,  19 .  .  . . ,  leaving  your  petitioner, 

his  widow,  and minor  children  surviving  him;  and 

she  prays  your  honorable  court,  in  conformity  with  the  statute 
in  such  case  made  and  provided,  to  appoint  five  discreet  and 
proper  persons  to  act  as  appraisers  in  setting  apart  to  your  peti- 
tioner and  her minor  children  as  aforesaid  the  sum 

necessary,  in  their  judgment,  for  support  and  maintenance  for 
the  space  of  twelve  months  from  the  date  of  administration  of 
said  estate  of  your  petitioner  and  her  children,  either  in  money 
or  such  property  as  may  be  selected  by  your  petitioner  at  a  fair 
valuation  to  be  made  by  said  appraisers.  And  also  to  set  apart 
a  sufficient  amount  of  household  furniture  for  the  use  of  your 
petitioner  and  her  children.  And,  further,  to  require  said  ap- 
praisers to  return  to  said  court  for  record  their  proceedings  in 
the  premises. 

,  Petitioner. 


ACKNOWLEDGMENT  OF  SERVICE  OF  NOTICE  BY  ADMINIS- 
TRATOR. 


Georgia, County. 

I, ,  administrator  of  the  estate  of , 

deceased,  do  hereby  acknowledge  due  and  legal  service  of  notice 

of  the  application  of and  her  children  for  twelve 

months'  support. 

This day  of ,  19 

,  Administrator. 


ADMINISTRATORS  AND  EXECUTORS  233 

RULE  NISI  WHERE  SERVICE  NOT  ACKNOWLEDGED. 


Court  of  Ordinary. 

The  foregoing  application  read   and  considered.      Ordered 

that ,  administrator  of  said  estate,  show  cause 

before  the  Court  of  Ordinary  for  said  county,  on  the 

day  of ,  19.  .  .  .,  why  said  application  should  not 

be  granted  as  prayed.  Let  him  be  personally  served  with  a  copy 
of  said  application  and  of  this  order  at  least  ten  days  before 
said  date. 

This day  of ,  19 

,  Ordinary. 


ORDER  APPOINTING  APPRAISERS. 


Court  of  Ordinary. 

At  Chambers ,  19 .... 

Upon  the  foregoing  application  of ,  the  widow 

of ,  deceased,  for  the  appointment  of  appraisers 

to  set  apart  to  said  widow  and  her minor  children  a 

sum  necessary  for  their  support  and  maintenance  for  the  space 

of  twelve  months,  out  of  the  estate  of  said ,  deceased, 

and  also  to  set  apart  for  the  use  of  said  widow  and  children  a 
sufficient  amount  of  household  furniture.  It  is  ordered  that 

be,  and  they  are,  hereby  appointed  appraisers,  and  they,  or  a 
majority  of  them,  are  hereby  empowered  to  set  off  and  assign 

to  the  said ,  widow  of ,  deceased,  late 

of  said  county,  and  her minor  children,  out  of  the 

estate  of  the  said  deceased,  a  sum  necessary  for  the  support  and 
maintenance  of  said  widow  and  children  for  the  space  of  twelve 
months ;  and  also  a  sufficient  amount  of  household  furniture  for 
the  use  of  said  widow  and  children.  And  the  said  sum  so  set 
apart  as  aforesaid  to  be  either  in  money  or  such  property  as  the 
widow  may  select,  at  a  fair  valuation,  to  be  made  by  said  ap- 
praisers; and  if,  upon  a  just  appraisement  of  the  estate,  the 

same  does  not  exceed dollars,  you  will  set  the 

whole  apart. 


234  ADMINISTRATORS  AND  EXECUTORS 

Further  ordered,  that  said  appraisers  return  to  me  for  record 
all  their  proceedings  in  the  premises. 

Given  under  my  hand  and  official  signature,  this day 

of ,19.... 

,  Ordinary. 


OATH  OF  APPRAISERS. 


Georgia, County. 

Before  me, ,  Ordinary  of  said  County, 

personally  came ,  commissioners 

appointed  to  lay  off  a  year's  support  for ,  and 

each,  being  duly  sworn,  on  oath  says  that  he  will  discharge  his 
duty  as  such  commissioner  justly,  fairly  and  to  the  best  of  his 
ability. 


Sworn  to  and  subscribed  before  me,  this 
the day  of ,  19 


Ordinary. 


RETURN  OF  APPRAISERS.     §4043. 


Georgia, County. 

To  the  Court  of  Ordinary  of  said  County : 

We,  the  undersigned,  appointed  by  the  Ordinary  of 

county  to  assess  a  sum  necessary  for  the  support  and  mainte- 
nance of  the  widow  and  minor  children  of for 

twelve  months  from  the  date  of  administration  of  the  estate  of 

,  and  also  to  set  apart  that  amount  of  money, 

or  such  property  as  may  be  selected  by  the  widow,  at  a  fair 
valuation,  to  be  made  by  us,  and  to  set  apart  for  the  widow  a 
sufficient  amount  of  household  furniture  for  the  use  of  the 
widow  and  children,  report  to  the  Ordinary  of  said  county  that 

after  due  investigation  of  the  circumstances  of 

estate,  we  assessed  as  the  sum  of  money  necessary  for  the  sup- 
port and  maintenance  of  the  widow  of and  said 

children,  for  twelve  months  from  date  of  administration  of  the 
estate  of , dollars ;  and  as 


ADMINISTRATORS  AND  EXECUTORS  235 

the  widow  selected of  the  value  of 

dollars,  we  set  apart  the  remainder  in  money  for  said  widow's 
and  said  children's  support  and  maintenance ;  and  we  further 
set  apart  to  the  widow,  for  the  use  of  the  widow  and  children, 

all  the  household  furniture  of 

In  witness  whereof  we  have -hereto  set  our  hands  and  seals, 

this day  of ,  19 .... 

[L.  S.] 

[L.  S.] 

[L.  S.] 

[L.  S.] 

[L.  S.] 


[NOTE:     The  report  of  the  appraisers  may  be  caveated  for  any  good 
and  sufficient  reason.] 


ORDER  FOR  CITATION  TO  ISSUE.    §4043. 


Court  of  Ordinary. 

At  Chambers, ,19 .... 

It  appearing  that  the  appraisers  appointed  to  set  apart  a 

year's  support  for ,  widow  of ,  late 

of  said  county,  deceased,  have  filed  their  return.     It  is  ordered 
that  citation  issue  and  be  published  as  provided  by  law. 

,  Ordinary. 


CITATION. 
(Usual  form  of  citation  to  be  used.) 


ORDER  ALLOWING  RETURN. 


Court  of  Ordinary. 

,  Term,  19 

The  report  of  the  appraisers  appointed  to  set  apart  to  the 

widow  and  minor  children  of the  provision  allowed 

by  law,  being  read,  and  the  court  being  satisfied  that  the  same 
is  in  due  form,  and  properly  made,  and  citation  having  been 
issued  and  published,  and  no  objection  being  filed,  it  is  ordered 
that  the  same  be  allowed  and  admitted  to  record,  and  stand  as 
the  judgment  of  this  court. 

,  Ordinary. 


236  ADMINISTRATORS  AND  EXECUTORS 

COMPROMISE  OF  CONTESTED  OR  DOUBTFUL  CLAIMS. 
§§4004-4006. 


APPLICATION  FOR  ORDER  TO  COMPROMISE. 


Georgia, County. 

To  the  Ordinary  of  said  County: 

The  petition  of ,  administrator  of , 

shows  that  as  such  administrator  he  holds  a  claim,  to  wit:  a 

promissory  note,  given  the day  of ,   19.  .  .  . , 

by to ,  in  the  sum  of 

and  due  the day  of ,  19 .  .  .  . ,  which  note 

has  long  been  due  and  remains  unpaid,  and  which  your  peti- 
tioner believes  can  not  be  paid  in  full  by  said for 

the  reason  that Petitioner  believes  the 

same  should  be  compromised  as  a  doubtful  debt,  and  informs 

your  honor  that  the  same  can  be  compromised  for , 

which  amount  all  of  said creditors  are  willing  to 

accept  from  him  in  discharge  of  their  claims.     Besides  this,  as 

your  petitioner  affirms,  the  said  debt  of estate 

on is  doubtful  of  collection  because  of 

Your  petitioner  believes  this  defense  may  be  made  out,  and 
therefore  believes  the  debt  doubtful,  and  is  of  the  opinion  that 

the  same  should  be  compromised  on  the  offer  made  by 

Your  petitioner  now,  in  consideration  of  the  premises,  prays  an 
order  to  allow  him  to  compromise  said  claim,  for  the  reasons 
aforesaid. 

,  Administrator. 

Subscribed  and  sworn  to  as  true  before  me 

this day  of ,  19.  ... 

,J.P. 


ORDER  TO  COMPROMISE. 


Georgia, County. 

Office  of  Ordinary. 

The  above  and  foregoing  petition  of ". ,  as 

administrator  of ,  deceased,  to  compromise  the 

claim  therein  set  forth  on being  read,  and  sufficient 

proof  being  shown  to  me  that  the  petition  ought  to  be  granted, 


ADMINISTRATORS  AND  EXECUTORS  237 

it  is  therefore  ordered  by  me  that  he  be,  and  is,  hereby  allowed 

to  compromise  said  claim  on This 

day  of ,19 

Ordinary. 


RETURN  OF  COMPROMISE  CLAIM. 


Georgia, County. 

In  person  before  me  came ,  as  administrator 

of ,  and  being  duly  sworn,  says  that,  in  com- 

pliance  with  the  order  granted  by  the  Ordinary  of  said  county 

on  the day  of ,  19.  .  .  .,  to  compromise  the 

claim  of estate  on said  order  granted 

at request  for  reasons  set  forth  in  his  petition  to 

said  Ordinary,  he  did  compromise  said  claim  for 

dollars,  being per  cent,  thereof,  which  settlement  so  made 

was  made  by  him  in  good  faith  and  to  the  best  interest  of  the 
parties  interested  in estate,  and  which  compro- 
mise and  settlement  he  now  returns  and  claims  a  credit  for  as 
such  administrator. 

Administrator  of ,  deceased. 

Subscribed  and  sworn  to  before  me  this 

day  of ,  19 

,  Ordinary. 


ORDER  TO  RECORD  RETURN. 


Ordinary's  Office, 

Term,  19 

Georgia, County. 

The  above  and  special  return  of: ,  administrator 

of ,  deceased,  of  his  compromise  of  a  claim  set 

forth  in  his  petition  being  made,  and  no  objection  being  filed 
to  the  same,  ordered  that  it  be  allowed  and  recorded  with  the 
petition  and  order  preceding  it. 

,  Ordinary. 


238  ADMINISTRATORS  AND  EXECUTOES 

TITLES  TO  HEIRS — PROCEEDINGS  TO  COMPEL  ADMINISTRATORS 
TO  MAKE.    $4018. 


To  the  Ordinary  of County: 

The  petition  of and ,  heirs  of 

,  shows  unto  the  court  that in  his 

lifetime,  on  the day  of ,  19.  .  .  .,  made  and 

delivered  to his  bond  for  titles  in  and  to  a  certain 

tract  of  land,  in  which  it  was  agreed  by ,  then  in 

life,  that  upon  payment  of he  would  make 

titles  to  a  certain  tract  of  land  lying  (describe  the  land),  that 

said. died  on  the day  of ,  19.  .  .  ., 

having  appointed  one his  executor ;  that  said  sum 

stipulated  for  in  said  bond  has  been  paid,  part  during  the  life- 
time of  said and  part  to ,  adminis- 
trator of ,  wherefore  your  petitioner  prays  a  rule 

nisi  may  issue  in  their  behalf  against ,  administrator 

of ,  requiring  him  to  appear  at  the  next  term 

of  this  court,  to  show  cause,  if  any  he  can,  why  he  should  not 
make  titles  in  and  to  said  land  to  your  petitioners,  who  aver 
that  they  are  the  heirs  at  law  of ,  deceased. 


RULE  NISI. 

Court  of  Ordinary, 

Term,  19 

The  foregoing  petition  of and ,  being  read 

to  the  court,  and  the  facts  therein  stated  shown  to  be  true, 

ordered  by  the  court  that  said ,  administrator 

of ,  deceased,  show  cause,  if  any  he  can,  at  the 

next  term  of  this  court,  why  he  should  not  make  to  said 

and titles  to  the  land  set  forth  in  said  petition, 

and  that  a  copy  of  this  rule  and  of  said  petition  be  served  on 

said days  before  the  next  term  of  this  court. 

,  Ordinary. 


ADMINISTRATORS  AND  EXECUTORS  239 

RULE  ABSOLUTE. 


Court  of  Ordinary, 

Term,  19 

It  appearing  to  the  court  that  a  rule  nisi  taken  at  the  last 

term  of  this  court  in  favor  of and 

vs ,  administrator  of ,  deceased,  has 

been  duly  served  on  said ,  requiring  him  to  show 

cause,  if  any  he  could,  why  he ,  as  administrator 

of ,  should  not  make and 

titles  to  a  certain  tract  of  land  (describe  the  land),  and  said 

. .  .' having  shown  no  cause  to  the  contrary,  ordered 

by  the  court  that ,  administrator  of ., 

deceased,  proceed  at  once  to  make  titles  of  said  land  to 

and 

,  Ordinary. 


DEED  OF  ADMINISTRATORS  TO  HEIRS. 


Georgia, County. 

This  deed,  made  this day  of ,  19.  .  .  ., 

between ,  administrator  of .........  deceased, 

of  the  one  part,  and and ,  heir  of , 

of  the  other  part,  witnesseth  that,  whereas  said in 

life,  bound  himself  to  make  titles  to to  a  certain 

tract  of  land   (describe  it),  and  died  before  making  the  title, 
and  whereas  the  condition  on  which  the  title  of  said  land  should 

be  made  to has  been  performed,  and  said 

and ,  heir  of ,  deceased,  have 

filed  their  petition  and  obtained  an  order  from  the  proper  Court 

of  Ordinary  after  due  notice,  requiring  said ,  as 

administrator  of ,  deceased,  to  make  title  in  said 

land  to  said and ,  now,  in  consideration 

of  the  premises,  and  in  order  to  comply  with  said  bond,  and  for 

value  received  of  said and said , 

administrator  of ,  deceased,  has  granted,  bar- 
gained and  sold,  and  by  these  presents  doth  bargain,  grant,  sell 

and  convey  to  said and all  the  said  tract  of 

land,  with  all  its  rights  and  privileges. 


240  ADMINISTRATORS  AND  EXECUTORS 

In  witness  whereof,  said ,  administrator  of 

,  deceased,  has  hereto  set  his  hand  and  seal, 

day  and  year  above  stated. 

;-. (L.  S.) 

Administrator  of 

Signed,  sealed  and  delivered  in  presence  of 
,J.P. 


ELECTION  OF  WIDOW.     §§3931  (3),  5249  (3),  5250-5252. 


Georgia, County. 

To ,  Administrator  of  the  estate  of .  . , 

deceased : 
You  are  hereby  notified  that  instead  of  dower  in  the  real 

estate  of  my  deceased  husband, ,1  hereby  elect 

to  take  a  child's  part  therein. 


Widow  of ,  deceased. 


DIVISION  IN  KIND.    §§4057-4061. 


PETITION. 

Georgia, County. 

To  the  Ordinary  of  said  County: 

The  petition  of ,  as  administrat ...  of  the  estate 

of ,  deceased,  shows  that  all  the  debts  of  said 

estate  have  been  paid,  and  that now has  in  hand 

the  following  property  of  said  estate,  to  wit : 


That  the  parties  interested  in  said  estate  as  heirs  and  distribu- 
tees are 

That  a  distribution  of  said  estate  in  kind  is  practicable,  and .  .  . 

therefore  prays for  the  granting  of  an  order  for 

such  division  of  said  property,  and  the  appointment  of  three  or 
more  freeholders  of  said  county  to  appraise  and  impartially 
divide  said  property  according  to  law. 

,  Administrat .  .  . 


ADMINISTRATORS  A.\D  EXECUTORS  241 

CITATION.    §4057". 


Georgia, County.. 

Court  of  Ordinary, 

Chambers, ,  19.  ... 

To 

adminiutrat ...  on  the  estate'  of ,  deceased,  having 

duly  filed petition,  praying  an  order  for  a  division  in 

kind  of  the  property  of  the  estate  of  said ,  deceased, 

you  are  hereby  cited  to  be  and  appear  at  the  Ordinary's  office 

of  said  county  on  the day  of ,  19 .  . .  . , 

and  show  cause,  if  any  you  have,  why  the  order  prayed  for  in 
said  petition  should  not  be  granted. 

,  Ordinary. 

We  hereby  acknowledge  due  and  legal  service  of  the  within 
petition,  order  and  citation,  waive  copies  of  the  same  and  all 

other  or  further  service  or  notice  herein.     This day 

of ,19 


I  have  this  day  served, 


minors,  personally  with  a  copy  of  the  within. 
This ,  19 

Deputy  Sheriff County,  Ga. 


GUARDIAN  AD  LITEM. 


Court  of  Ordinarv,    County. 

Term,  19 

It  appearing  from  the  return  of  the  sheriff,  entered  hereon, 

that  the  within  named  minors,  to  wit : 

• i 

have  each  been  personally  served  with  a  copy  of  this  proceeding 

and  that have  no  guardian.     It  is  ordered  that 

be,    and is   hereby    appointed   guardian 


242  ADMINISTRATORS  AND  EXECUTORS 

ad  litem  for  said  minor,  .to  represent herein,  and  that 

he  be  duly  served  with  notice  of  this  appointment, 

and  that  upon  acceptance  of  the  same he  be  notified  of 

this  proceeding,  and  make  answer  hereto. 

,  Ordinary. 


ACCEPTANCE  BY  GUARDIAN  AD  LITEM. 


I   hereby    accept    the    foregoing   appointment,    acknowledge 
service  and  notice  of  said  proceeding,  as  provided  by  law. 

Guardian  ad  litem  for . . 


ORDER  APPOINTING  APPRAISERS.     §4058. 


.,  Administrat.  . 

vs. 

Petition  for  division  in  kind, 
etc.,  of  estate  of  said  de- 
ceased. 

Heirs  and  distributees  of.  ... 
, ,   deceased.  - 


It  appearing  that. 


all  the  heirs  and  distributees  of  said  deceased,  have  been  notified 
of  this  proceeding  as  required  by  law,  and  no  objection  being- 
filed,  or  cause  shown  to  the  contrary ;  and  it  appearing  that  said 
division  in  kind  is  practicable :  It  is,  therefore,  ordered  that  a 
division  in  kind  of  the  property  named  in  said  petition  be  had, 

and , 

freeholders  of  said  county,  are  hereby  appointed  appraisers,  to 
appraise  and  impartially  divide  said  property  according  to  law. 
It  is  further  ordered  that  said  appraisers  make  return  of  their 
actings  and  doings  in  the  premises  to  the  ordinary's  office  of  said 

county  on  or  before  the day  of ,  19 .... 

,  Ordinary. 


OATH  OF  APPRAISERS.     §4058. 


Georgia, County. 

You  do  swear  that  you  will  faithfully  and  impartially  dis- 


ADMINISTRATORS  AND  EXECUTORS  243 


charge  your  duties  as  appraisers  of  the  estate  of. 

deceased,  in  the  hands  of ,  administrat . 

according  to  law. 


Sworn  to  and  subscribed  before  me  this 

day  of ,  19 

,  Ordinary. 


RETURN  OF  APPRAISERS.     §4059. 


Georgia, County. 

By  virtue  of  an  order  of  the  court  of  ordinary  of  said  county, 
to  us  directed,  to  make  a  fair  division  in  kind  of  the  estate  of 

,  deceased,  now  in  the  hands  of , 

administrat. .  .,  among lawful  heirs  and  distributees, 

we  proceeded  this  day  to  make  said  division,  after  being  first 
lawfully  sworn  to  perform  said  duty,  and  the'  following  is  the 
result :  

Given  under  our  hands  and  seals,  this  the day 

of ,19.... 

[SEAL] 

[SEAL] 

[SEAL] 


FINAL  ORDER. 


Court  of  Ordinary. 

Term,  19.... 

Upon  considering  the  foregoing  return  of  the  appraisers  in 

the  matter  of  the  division  in  kind  of  the  estate  of , 

deceased,  and  it  appearing  that  it  was  carefully  made  and  filed 
and  no  objection  having  been  made  thereto,  it  is  ordered  by  the 
court  that  the  said  return  be,  and  is,  hereby  made  the  judgment 
of  the  court;  and  that  it,  with  the  other  proceedings  therein,  be 
spread  upon  the  minutes  of  this  court. 

,  Ordinary. 


[NOTE:     Refunding  bond  may  be  demanded  by  the  administrator, 
before  delivering  property  to  distributees.     §4061.] 


244  ADMINISTRATORS  AND  EXECUTORS 

PAYMENT  OF  DEBTS. 


to Dr. 

19 Date. 

,19....    To $ 


Georgia, County. 

Personally,  before  me,  came ,  and,  being  duly 

sworn,  says  the  above  account  of dollars  is  just, 

due  and  unpaid. 

Sworn  to  and  subscribed  before  me  this 

day  of.'. ,   19 

' 


RECEIPT  TO  ADMINISTRATOR. 


Received  of ,  administrator  of , 

this day  of ,  19 .  .  .  . ,  the  sum  of , 

in  full  payment  of  the  above  account. 


NOTE  SIGNED  BY  MARK  AND  NOT  ATTESTED,  AFFIDAVIT  TO. 


Georgia,    County. 

Personally,  before  me,  came ,  who,  being 

duly  sworn,  says  the  above  note,  signed  by  the  mark  of , 

and  not  attested  by  any  witness,  is  a  genuine  note  given  by 
,  and  is  a  just  demand  on estate. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

, ,  Ordinary. 


ADMINISTRATORS  AND  EXECUTORS  245 

RECEIPT  ON  NOTE. 


Received  on  the  within  note  from ,  admin- 
istrator of ,  deceased,  the  maker  of  the  within 

note,  this day  of ,  19 . . . . ,  the  sum  of 

dollars,  in  full  of  the  same. 


To  divest  title  of  decedent  by  allowance  of  year's  support,  land  must 
be  so  described  as  to  indicate  that  particular  tract  was  intended  to 
be  set  apart.  Description  here  was  too  indefinite  to  be  capable  of 
enforcement.  145/325  (1)  (89  S.  E.  208).  Description  here  con- 
taining nothing  more  definite  than  "ninety-five  acres  of  land  valued 
at  250"  was  invalid  for  want  of  sufficient  description.  144/231  '(3) 
(86  S.  E.  1089). 


V.— RETURNS,   INVENTORY,   APPRAISEMENT,   AC- 
COUNT AND  COMMISSION.     §§3983-3996. 


INVENTORY  AND  APPRAISEMENT.     §§3983-3991. 


ORDER  APPOINTING  APPRAISERS.     §3983. 


Court  of  Ordinary, County. 

At  Chambers, ,  19 .... 

Ordered,  that 

> 

freeholders  of  said  county,  be,  and  they  are,  hereby  appointed 

appraisers  of  the  estate  of ,  deceased,  and  that 

the  usual  warrant  issue. 

,  Ordinary. 


WARRANT  OF  APPRAISEMENT.     §3983. 


Georgia, County. 

By  the  Ordinary  for  the  county  aforesaid. 
To • 

These  are  to  authorize  you,  or  any  three  or  more  of  you,  to 


246  ADMINISTRATORS  AND  EXECUTORS 

repair  to  all  such  parts  and  places  as  you  shall  be  directed  unto 

by ,  administrat ...   of  all  and  singular  the 

lands,  goods  and  chattels,  rights  and  credits  of , 

deceased,  wheresoever  any  of  the  lands,  goods  or  chattels  of  the 
said  deceased  are,  or  do  remain,  within  the  said  parts  or  places, 
and  which  shall  be  shown  unto  you  by  the  said  administrat.  .  ., 
and  there  view  and  fairly  and  justly  appraise  and  value  all  and 
every  the  said  lands,  goods  and  chattels,  being  first  sworn  to 
make  a  true  and  perfect  inventory  and  appraisement  thereof, 
and  cause  the  same  to  be  returned  under  your  hands,  or  any 
three  or  more  of  you,  to  the  said  administrat.  .  .  within  sixty 
days  from  the  date  hereof. 

In  testimony  whereof  I  hereunto  affix  my  hand  and  seal,  this 

...'...day  of ,  19 

,  Ordinary. 


OATH  OF  APPRAISERS. 


You do  swear  that  you  will  faithfully 

discharge  your  duties  as  appraisers  of  the  personal  property 

of ,  deceased,  as  shall  be  produced  to  you  by 

,   administrat.  .  .    of  the  said  deceased's  estate, 

and  the  real  estate  of  said  deceased  in county,  and 

that  you  will  return  the  same  certified  under  your  hands,  unto 
the  said  administrat.  .  .  within  the  time  prescribed  by  law. 

[SEAL.] 

[SEAL.] 

[SEAL.] 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


RETURN  OF  APPRAISERS.     §3989. 


Georgia, County. 

Inventory  and  appraisement  of  all  the  personal  property  and 
real  estate  lying  in  said  county  belonging  to  the  estate  of 
,  deceased :  . 


ADMINISTRATORS  AND  EXECUTORS  247 

CERTIFICATE  OF  APPRAISERS. 


We,  the  undersigned  appraisers,  do  certify  that  having  been 
first  sworn  by  and  before  each  other  according  to  law,  that  the 
within  and  foregoing  is  a  true  inventory  and  appraisement  of 
all  the  estate  of  ..............  ,  deceased,  so  far  as  the  same 

was  produced  before  us  by  the  administrat.  .  .  of  said  deceased, 
to  the  best  of  our  judgment  and  understanding. 

Given  under  our  hands  and  seals,  this  ...............  day 

of..  ....................  19  ____ 


[L.  S.] 

[L.  S.] 

[L.  S.] 

;....[L.  S.] 

Appraisers. 


INVENTORY  AND  APPRAISEMENT  BY  ADMINISTRATOR.     §3984. 


Of  the  estate  of ,  deceased. 

I  Dollars  I    Cents 


248  ADMINISTRATORS  AND  EXECUTORS 

OATH  OF  ADMINISTRATOR.     §3984. 


Georgia, County. 

You 

do  swear  that  the  foregoing  is  a  true  and  just 

return  of  all  the  property  of ,  deceased,   and 

that  the  above  inventory  contains  a  true  account  of  all  the  goods 
and  chattels,  rights  and  credits,  and  of  the  land  lying  in  said 
county,  of  said  deceased,  within  your  hands,  possession  or 
knowledge;  so  help  you  God. 


Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

,  Ordinary. 

Ordered,  that  the  foregoing  appraisement  be  recorded , 

19.... 

,  Ordinary. 


ANNUAL  RETURNS.     §§3992-3996. 


ANNUAL  RETURN. 


In  account  with  estate  of 

DR. 


To  cash  from. 

it  K  (I 

it  ((  (( 


CR. 

By  cash  paid.  As  per  voucher  No.  1. 


Sworn  to  and  subscribed  before  me,  this 

day  of ,   19 

,  Ordinary. 


ADMINISTRATORS  AND  EXECUTORS  249 

ORDER  OF  ORDINARY.    §§3993,  3994. 


Court  of  Ordinary, County. 

Chambers, 19 .... 

The  within  return  and  its  vouchers,  having  been  carefully  ex- 
amined and  found  correct,  and  having  remained  on  file  in  this 
office  for  thirty  days,  and  no  objection  filed  thereto,  the  same  is 
allowed;  and  it  is  ordered  that  said  return,  together  with  its 
vouchers,  be  recorded  as  the  law  requires. 

,  Ordinary. 


EULE  NISI  FOR  NOT  MAKING  KETURNS. 


Georgia, County. 

Court  of  Ordinary. 

Term,  19 

It  appearing  to  the  court,  from  an  examination  of  the  dockets 

of  this  court,  that ,  administrator  of  the  estate 

of ,  deceased,  has  failed  to  make annual 

return,  in  the  time  required  by  law,  and  that  no  excuse  has  been 
presented  to  this  court  for  said  default :  It  is  therefore  ordered, 

that  said administrator   as   aforesaid,   make 

return  as  required  by  law,  by  the term,  19.  .  .  .,  of 

this  court,  or. show  cause  for  said  default ;  else  such  further  action 
will  be  taken  as  is  authorized  by  law;  and  it  is  further  ordered 
that  a  copy  of  this  rule  be  served  on  said 

at  least  ten  days  before  said  court. 

,  Ordinary. 


RULE  ABSOLUTE,  WHERE  FAILURE  TO  MAKE  RETURN. 


Court  of  Ordinary. 

Term,  19 

The  rule  nisi  taken  at  the  last  term  of  the  court  against 

,   administrator   of ,   deceased,  having 

been  duly  served  by  the  sheriff  of  this  county,  and  the  answer 

of ,  administrator,  being  in  court,  and  showing 

that  he  is  now  willing  and  ready  to  make  his  annual  returns, 


250  ADMINISTRATORS  ANI>  EXECUTOES 

and  omitted  his  duty  from  forgetfulness  alone,  ordered  that 

said ,   administrator,   pay  the  cost  of  said   rule 

nisi,  which  is  hereby  discharged. 

,  Ordinary. 


CAVEAT  TO  RETURN  OF  ADMINISTRATOR. 


Court  of  Ordinary. 

Term,  19 

And  now  comes ,  next  of  kin  of , 

and  caveats  the  return  made  on  the day  of , 

19 .  .  .  . ,  by ,  administrator  of , 

deceased,  and  says  the  same  should  not  be  admitted  to  record 
and  sanctioned  by  this  court,  because  he  says  the  same  is  illegal 
in  this  (specify  the  objectionable  items  and  cause  of  objection 
thereto)  ;  all  of  which  he  is  ready  to  prove,  and  prays  the  same 
may  not  be  allowed. 

i 

Attorney  of  Cavetor. 
,19.. 


ORDER  OVERRULING  CAVEAT. 


Court  of  Ordinary. 

Term,  19 

The  return  of ,  administrator  of , 

deceased,  made  on  the day  of ,  19.  .  .  .,  having 

been  filed  in  the  office  thirty  days,  as  required  by  law,  and  the 

caveat  of to  it  having  been  considered, 

ordered  that  said  caveat  be  overruled,  and  the  return  allowed  in 
full  and  admitted  to  record. 

,  Ordinary. 


AFFIDAVIT  OF  SECURITY  TO,  WHERE  THE  ADMINISTRATOR  HAS 
REMOVED  FROM  THE  STATE.    §3995. 


In  person,  before  me,  came ,  security  of 

, ,  administrator  of ,  removed  to  the 


ADMINISTRATORS  AND  EXECUTORS  251 

State  of ,  and  being  sworn,  says  the  above  return  is 

just  and  true. 

,  Security. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,   19 

,  Ordinary. 


NON-RESIDENT  ADMINISTRATOR,  RETURN  OF.     §3995. 


ORDER  OF  ORDINARY. 


Court  of  Ordinary. 

Term,  19 

It  appearing  to  the  court  that  the  foregoing  return  of 

,  a  non-resident  administrator,  has  been  duly 

proved  by  the  affidavit  of ,  security  on  the  bond 

of ,  and  is  accompanied  by  the  proper  vouchers 

and  is  correct  and  has  been  filed  in  the  office  the  necessary  time 
required  by  law,  ordered  that  it  be  admitted  to  record. 

,  Ordinary. 


EXTRA  COMPENSATION.    §4067. 


PETITION  FOR  ALLOWANCE  OF. 


Georgia, County. 

To  the  Ordinary  of  said  County: 

The  petition  of ,  as  administrator  of 

deceased,  shows  to  the  court  that,  as  administrator  of , 

deceased,  in  the  control  and  management  of  the  land  of , 

his  intestate,  he  has  spent  a  great  deal  of  time  and  labor  in 
(state  the  nature  and  extent  of  the  services)  ;  that  the  commis- 
sion allowed  by  law  will  not  be  sufficient  compensation  for  such 
services,  and  he  prays  the  court  to  allow  him  such  extra  com- 
pensation for  the  services  as  may  be  just  and  proper. 

Administrator  of 

Came  into  open  court ,  administrator  of 


252  ADMINISTRATORS  AND  EXECUTORS 

deceased,  and  being  duly  sworn,  says  the 

above  facts  are  true. 


Administrator  of 

Sworn  to  in  open  court  before  me,  this 

day  of ,  19 

,  Ordinary. 

Court  of  Ordinary. 

Term,  19 

The  application  of ,  administrator  of 

deceased,  for  extra  compensation  for  managing  the  lands  of 

estate,  being  before  the  court,  and  the  proofs 

being  made  to  the  court  of  the  nature  and  extent  of  these  services, 

it  is  ordered  by  the  court  that  said ,  administrator 

of ,  deceased,  be  allowed  for  his  services  the 

sum  of dollars  per  annum,  dating  from 

death. 

,  Ordinary. 


COMMISSIONS;  FORFEITURE.    §4069. 


Georgia, County. 

To  the  Ordinary  of  said  County : 

The  petition  of ,  administrator  of , 

deceased,  shows  that  he  was  actually  prevented  from  making 
his  annual  return  for  19.  .  .  .,  at  the  time  required  by  law,  on 

the  estate  of ,  deceased,  because  of , 

and  prays  an  order  of  the  court  to  save  him  from  forfeiture  of 
the  commission  on  this  return  so  omitted,  and  which  he  has 
inade  now  at  the  first  opportunity  given  him. 

Administrator. 

I.;.' ; ,19.... 

Came  into  open  court ,  administrator  of 

,  deceased,  and  being  duly  sworn,  says  the  facts 

stated  in  said  petition  are  true. 

Administrator  of 

Sworn  to  and  subscribed  before  me,  this 

day  of ,   19 

,...,..,,...,  Ordinary. 


ADMINISTRATORS  AND  EXECUTORS  253 

ORDER  RELIEVING  ADMINISTRATOR. 


Court  of  Ordinary. 

Term,  19 

The  petition  of ,  administrator  of , 

deceased,  to  be  saved  by  special  order  of  this  court  from  for- 
feiture commission,  for  not  making  his  annual  returns  in  19.  .  ., 
at  the  time  required  by  law,  being  read  and  considered  by  the 
court,  and  the  same  being  shown  to  the  court  to  be  true,  it  is 
therefore  ordered  that  he  be  allowed  his  commission  on  the  re- 
turns, which  he  failed  to  make  at  the  proper  time,  in  19.  .  .  ., 
but  has  since  made,  and  that  he  shall  be  exempt  from  forfeiture 
of  commission  for  not  making  his  annual  returns  in  19.  .  .  ., 
at  the  time  required  by  law. 

,  Ordinary. 


FINAL  RETURN. 


In  account  with  estate  of . . . . , 

DR. 
To  cash  from. 


OR. 
By  cash  paid.  As  per  voucher  No.  1. 


Administrator  of ,  deceased. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

,  Ordinary. 


254  ADMINISTRATORS  AND  EXECUTORS 

ORDER  ALLOWING  FINAL  RETURN. 


Court  of  Ordinary,   County. 

Chambers,   19.  ... 

The  within  return  and  its  vouchers,  having  been  carefully 
examined  and  found  correct,  and  having  remained  on  file  in 
office  for  thirty  days,  and  no  objection  filed  thereto,  the  same 
is  allowed ;  and  it  is  ordered  that  said  return,  together  with  its 
vouchers,  be  recorded  as  the  law  requires. 

,  Ordinary. 


Account  and  settlement:     Citation  to  account  only  pleading  necessary. 

71/11   (2);    142/257   (82  S.  E.  651).     Answer  of  administrator  to 

petition    for,    not    objectionable   because   no    schedule    of   returns 

attached  thereto.     113/824   (3)    (39  S.  E.  291). 
Returns    of    administrators    must    be    under    oath.      137/516    (6)     (73 

S.  E.  747). 


VI.— SUITS  BY  OR  AGAINST  ADMINISTRATORS. 

$§4081-4088. 


PLEAS  OF  ADMINISTRATOR. 


UNQUES  ADMINISTRATOR.     §4086. 


vs. 


as  administrator  of  the  estate 
of. 


.In Superior  Court 

Term,   19 


And  now  comes  the  defendant  in  the  above-stated  case,  and 
for  plea  says :  that  he  is  not  now,  nor  has  ever  been,  executor  of 
the  last  will  and  testament  (or  the  administrator  of  the  estate) 

of ,  deceased.     And  of  this  he  puts  himself 

upon  the  country. 

Defendant's  Attorney. 


ADMINISTRATORS  AND  EXECUTORS 
PLENE  ADMINISTEAVIT.     §4086. 


255 


vs. 


In Superior    Court 

Term,   19 


as  administrator  of  the  estate 
of, 

And  now  comes  the  defendant  in  the  above-stated  case,  and 

for  plea  says,  that  as  the  administrator  of  the  estate  of , 

deceased,  after  more  than  twelve  months  had  elapsed  from  the 
date  of  his  letters  of  administration  upon  the  estate  of  said  de- 
ceased (notice  within  the  said  twelve  months  having  been  given 
to  creditors  of  said  deceased,  in  terms  of  the  law  to  present  such 
claims  or  demands  as  they  or  any  of  them  had  against  said  estate 
as  required  by  law),  and  before  any  notice  of  the  claim  sued  on 
in  this  case  was  given  to  this  defendant,  as  the  administrator 
of  said  deceased,  he  has  fully  administered  all  of  the  assets  of 
said  estate  that  came  into  his  hands,  by  collecting  the  same 
together,  paying  the  just  debts  due  by  said  estate,  and  the  costs 
of  administration,  and  making  distribution  among  the  distribu- 
tees of  said  estate,  of  the  remainder,  according  to  law.  And  of 
this  he  puts  himself  on  the  country. 

Defendant's  Attorney. 


PLENE  ADMINISTRAVIT  PRAETER.  „  §4086. 


as  administrator  of  the  estate 
of. 


In Superior  Court 

.Term,   19 


And  now  comes  the  defendant  in  the  above-stated  case,  and 

for  plea  says,  that  as  the  administrator  of  the  estate  of , 

deceased,  he  has  fully  administered  said  estate,  according  to 
law  except  as  to  the  following  property,  to  wit:  (Here  describe 
the  property  or  money  still  in  hand  to  be  administered),  and 
that  since  lie  had  notice  of  plaintiff's  demand,  he  has  had  none 
other  of  the  property  or  effects  belonging  to  said  estate  in  hand 


256  ADMINISTRATORS  AND  EXECUTORS 

to  be  administered  than  the  property  or  effects  hereinbefore  set 
forth.    And  of  this  he  puts  himself  upon  the  country. 

Defendant's  Attorney. 


PLEA  OF  STATUTE  OF  LIMITATIONS. 


In Superior  Court 

as  administrator  of  the  estate      lerm,   1 

of 

Now  comes  the  defendant  in  the  above  named  and  stated 
case,  and  for  plea  and  answer  therein,  says: 

That  said  suit  is  barred  by  the  statute  of  limitations  for  the 

reason  that  the  note  sued  on  is  dated  the day  of , 

19.  . .  .,  and  due  on  the day  of ,  19.  .  .  .  ;  and 

defendant's  intestate  died  on  the day  of ,  19.  .  .  ., 

and  letters  of  administration  were  granted  to  this  defendant  on 

the day  of ,  19 .  . .  .  ;  and  that  counting  out  the 

time  from  the  death  of  the  intestate  up  to  the  time  of  the  grant- 
ing of  letters  of  administration  and  the  twelve  months  thereafter 
from  which  this  defendant  was  relieved  from  suit,  more  than 
six  years  elapsed  from  the  time  said  note  became  due,  up  to  the 
time  of  the  filing  of  this  suit ;  and  'defendant  pleads  the  statute 
of  limitations  against  the  claim  of  plaintiff. 

Defendant's  Attorney. 

Georgia, County. 

Personally   came   before   the   undersigned    attesting    officer, 

,  as  administrator  of  the  estate  of , 

deceased,  and  being  duly  sworn,  on  oath,  says  that  the  facts  and 
things  set  forth  in  the  foregoing  plea  are  true. 

Administrator  of ,  deceased. 

Sworn  to  and  subscribed  before  me  this 

day  of ,  19 

,  J.  P. 


[NOTE:  This  plea  can  be  made  to  meet  an  account  or  any  other 
form  of  indebtedness,  where  the  statute  of  limitations  would  lie  under 
the  law.] 


ADMINISTRATORS  AND  EXECUTORS  257 

PLEA  OF  REVOCATION  OF  LETTERS.     §4086. 


vs. 


Superior  Court 
.Term,   19 


as  administrator  of  the  estate 

of 

And  now  comes  the  defendant  in  the  above  stated  case  and 
for  plea  says  that  pending  the  present  action,  his  letters  of 

administration  were  revoked  by  the  court  of  ordinary  of 

county  upon  due  and  legal  order  passed  by  said  court  on  the 

day  of ,  19.  .  .  .,  and  the  administration  of 

said  estate  committed  to  another,  to  wit,  to ,  to 

whom  all  the  assets  of  said  estate  which  came  into  defendant's 
hands  have  been  delivered.  And  of  this  he  puts  himself  upon 
the  country. 

Defendant's  Attorney. 
JUDGMENT  AGAINST  ADMINISTRATOR.     §4088. 

vs. 

In Superior  Court 

as  administrator  of lerm,   1.9.  .  .  . 

deceased 

In  the  above  named  and  stated  case,  the  jury  having  found  a 

verdict  in  favor  of  the  plaintiff  for  the  sum  of 

dollars  and cents,  and  costs  of  suit ; 

It  is  considered,  ordered  and  adjudged  that  the  plaintiff, 

,  do  recover  of  the  defendant, ,  as 

administrator  of  the  estate  of ,  deceased,  the  sum  of 

dollars,  for  principal  debt,  and 

dollars  interest  to  judgment,  with  interest  on  the  principal  debt 

from  this  date  at  the' rate  of per  cent,  per  annum;  and 

dollars  costs  of  suit,  to  be  levied  on  the  goods, 

lands  and  tenements  in  the  hands  of  the  said , 

as  administrator  of ,  deceased,  if  to  be  found,  and 

if  not  to  be  found,  then  of  the  lands,  goods  and  tenements  of 
the  said ,  administrator. 

Judgment  entered  up  this day  of ,  19.  ... 

Attorneys  for  Plaintiff. 


258  ADMINISTRATORS  AND  EXECUTORS 


JUDGMENT  WHERE  PLEA  OF  NE  UNQUES,   PLENE  ADMINIS- 

TEAVIT  OR  PLENE  ADMINISTRAVIT  PRAETOR  Is  FILED 

AND  FAILS.     §4088. 


(State  the  case.) 

Whereupon,  it  is  considered,  ordered  and  adjudged  by  the 

court  that  the  plaintiff do  have  and  recover  of 

as  the  administrator  of ,  deceased, 

the  sum  of dollars  and cents,  as  principal, 

'. dollars  and cents  interest  to  judgment,  and 

dollars  and cents  for  costs  of  suit,  to  be 

levied,  in  the  first  instance  of  the  goods  and  chattels,  lands  and 

tenements  of  the  said ,  deceased,  if  to  be  found, 

and  if  not  to  be  found,  then  of  personal  goods  and  chattels, 
lands  and  tenements  of  the  said 

This day  of ,  19 

Plaintiff's  Attorney. 


JUDGMENT  QUANDO  ACCIDERINT.     §4088. 


(State  the  case.)  - 

Whereupon,  it  is  considered,  ordered  and  adjudged  by  the 
court  here  that  the  plaintiff  do  have  and  recover  of  the  de- 
fendant the  sum  of dollars  for  his  principal  debt, 

the  sum  of dollars  for  his  interest  up  to  this  date, 

and  the  sum  of dollars  for  his  costs  and  charges, 

in  this  behalf  laid  out  and  expended ;  to  be  levied  as  to  the  sum 

of dollars,  of  the  goods  and  chattels,  lands  and 

tenements  of  the  testator  [or  intestate]  now  in  the  hands  of  the 
defendant,  to  be  administered,  and  as  to  the  balance,  to  be  levied 
of  the  goods  and  chattels,  lands  and  tenements  of  the  testator 
[or  intestate]  which  shall  hereafter  come  to  the  hands  of  the 
defendant  to  be  administered. 

This day  of ,  19 

Plaintiff's  Attorney. 


JUDGMENT  WHERE  PLEA  OF  PLENE  ADMINISTRAVIT  Is 
SUSTAINED. 


(State  the  case.) 

Whereupon,  it  is  considered,  ordered  and  adjudged  by  the 

court  that  the  plaintiff, ,  do  have  and  recover  of 

the  defendant, ,  as  the  administrator  of , 

deceased,  the  sum  of dollars  and cents  prin- 
cipal,   dollars  and cents  interest  to  judgment, 

and .*.  .dollars  and cents  for  costs,  to  be  levied 

of  the  goods  and  chattels,  lands  and  tenements  of  the  said 

,  deceased,  that  may  hereafter  come  into  the 

hands  of.' ,  administrator,  to  be  administered. 

This day  of ,  19 

Plaintiff's  Attorney. 


Descriptio  personae.  "Administrator"  or  "executor"  after  name,  treated 
as  descriptio  personae,  when  and  when  not.  54/537;  69/289;  116/8 
(42  S.  E.  381);  117/788  (45  S.  B.  61),  842  (1)  (45  S.  E.  221); 
121/773  (2)  (49  S.  E.  782);  138/751  (76  S.  E.  49);  140/326,  330 
(78  S.  E.  912);  143/214  (84  S.  E.  538),  721  (85  S.  E1.  895);  145/616 
(89  S.  E.  689) ;  13  App.  504,  505  (79  S.  E.  480),  744  (79  S.  E.  746). 
See  Code,  §3570. 

Plene  administravit  filed  in  suit  by  "administrator"  is  plea  by  him  as 
an  individual.  117/842  (45  S.  EL  221).  Plea  which  fails  to  allege 
that  administrator  did  not  have  notice  of  claim  when  estate  admin- 
istered, is  insufficient.  121/773  (49  S.  E.  782). 


VII.— DISMISSION,  RESIGNATION  AND  REMOVAL. 

§§3978-3982,  4089-4100. 


REMOVAL  OF  ADMINISTRATOR. 


APPLICATION  BY  NEXT  OF  KIN  FOR  REMOVAL  OF 
ADMINISTRATOR. 


Georgia, County. 

To  the  Court  of  Ordinary  of  said  County : 

Petition  of shows  that ,  adminis- 
trator of  the  estate  of ,  late  of  said  county,  deceased, 

is  unfit  for  the  trust  reposed  in  him,  because  the  said 


260  ADMINISTRATORS  AND  EXECUTORS 

administrator,  wastes  and  mismanages  the  estate  of  the  said 
in  this  (State  the  particulars  of  such  mismanage- 
ment, or  specifically  state  some  other  ground  set  forth  in  Code, 
§3978).  Petitioner  shows  that  he  is  interested  in  said  estate, 
being  a  distributee  thereof. 

Wherefore  petitioner  prays  the  court  to  pass  an  order  citing 
said  administrator  to  answer  said  charge  at  the  regular  term 
of  the  court,  and  that  upon  the  hearing  of  his  returns  the  court 
in  its  discretion  do  revoke  the  letters  of  administration  of  the 

said ,  as  administrator  as  aforesaid. 

This day  of 19 


Petitioner. 


RULE  NISI. 

Court  of  Ordinary. 

Term,  19 

,  as  heir  at  law  of ,  having 

filed  his  petition  in  due  form  charging ,  adminis- 
trator of ,  deceased,  with  mismanagement  of 

estate,  in  this :     (State  the  irregularity) 

and  said having  proved  to  the  satisfaction  of  this 

court  that  there  is  sufficient  ground  to  issue  a  rule  nisi,  therefore 

it  is  ordered  that  said ,  as  such  administrator  of 

,  deceased,  show  cause  at  the  next  term  of  this 

court  why  he  should  not  be  removed  from  his  administration  on 

account  of  such  mismanagement,  and  that  a  copy  of  said  rule 

be  served  on  him  ten  days  before  the  next  term  of  said  court. 

.  .  . ,  Ordinary. 


ANSWER  TO  RULE. 


Court  of  Ordinary. 

Term,  19.  ... 

And  now  at  this  term  comes ,  administrator 

of ,  deceased,  and  for  answer  to  a  rule  nisi  taken 

against  him  at  the  last  term  of  the  court,  at  the  instance  of 

,  an  heir  at  law  of ,  says  that  the 

facts  stated  in  said petition,  on  which  said  rule  nisi 


ADMINISTRATORS  AND  EXECUTORS  261 

is  founded,  are  not  true,  and  that  said  nisi  ought  to  be  discharged 
at  the  cost  of  said . . 


Administrator  of. 


ORDER  TO  DISCHARGE  RULE. 


Court  of  Ordinary. 

Term,  19 

The  rule  nisi  issued  against ,  administrator 

of ,  deceased,  having  been  served,  and  the  same 

coming  on  for  a  hearing,  and  proof  having  been  submitted  by 
both  parties  thereto,  ordered  that  said  rule  nisi  be  discharged 
at  the  cost  of  said  petitioner. 

,  Ordinary. 


ORDER  TO  REVOKE  LETTERS. 


Court  of  Ordinary. 

Term,  19 

A  rule  nisi  having  been  taken  against ,  adminis- 
trator of ,  deceased,  at  the  instance  of , 

heir  at  law,  calling  upon  him  to  show  cause  why  said , 

as  such  administrator,  should  not  be  removed  from  his  adminis- 
tration of estate,  on  the  ground  set  forth  in  said 

rule  nisi ;  and  it  appearing  that  said  rule  has  been  duly  served, 

and  that  said ,  administrator  of , 

deceased,  from  the  proofs  submitted  by  both  parties,  has  been 

guilty  of  the  mismanagement  charged  against  him  by , 

therefore  it  is  ordered  by  the  court  that  the  letters  of 

as  such  administrator,  be  revoked. 

This day  of ,  19 

,  Ordinary. 


FINAL  SETTLEMENT — CITATION  OF  ADMINISTRATOR  TO.   §4073. 


PETITION  TO  CITE  ADMINISTRATOR  TO  A  SETTLEMENT  OF 
His  ACCOUNT. 


Georgia, County. 

To  the  Court  of  Ordinary  of  said  County : 

The  petition  of , of. 


262  ADMINISTRATORS  AND  EXECUTORS 

shows  that  at  the term,  19.  .  .  .,  letters  of  administra- 
tion were  granted  by  the  Court  of  Ordinary  of  said  county  to 

on  the  estate  of ;  that  more  than 

one  year  has  expired  from  the  grant  of  said  letters  of  adminis- 
tration to ;  that  said  administrator  has  sold  out 

the  estate  of and  has  paid  all  his  debts,  and  your 

petitioner  (as  one  of  the  next  of  kin  of  the  deceased  intestate) 
is  entitled  to  his  share  of  said  estate;  so  in  order  to  ascertain 

the  same  your  petitioner  prays  that  a  settlement  of 

account  as  administrator  may  be  had  at  the term 

of  the  Court  of  Ordinary  for  said  county,  to  be  held 

day  of ,  19.  .  .  .,  and  that  citation  issue  to  said 

administrator  requiring  him  to  be  then  and  there  present  and 

make  a  full  settlement  of  the  estate  of in  his 

hands  as  administrator,  as  said  court  will  then 

and  there  make  an  account  of  the  estate  of in  his, 

the  hands  of ,  his  administrator. 

of ,  Deceased. 


RULE 


Georgia,  ............  County. 

At  Chambers,  this  .....  day  of  .........  ,  19.  ... 

The  foregoing  petition  of  ................  ,  heir  at  law  of 

.................  ,  for  a  settlement  of  the  administration  of 

............  ,  as  administrator  of  the  estate  of  ............  , 

deceased,  at  the  ........  term  of  the  Court  of  Ordinary  of  said 

county,  having  been  duly  filed,  and  it  appearing  to  be  just  and 
proper,  it  is  ordered  that  a  citation  issue  to  said  ............  , 

as  such  administrator,  to  be  and  appear  at  ........  term  of  said 

court  and  make  a  full  settlement  of  his  administration  of  the 
estate  of  ............  ,  deceased,  and  that  this  order  operate 

as  the  citation  required,  when  a  copy  of  the  same  and  petition 
are  served  on  ............  ten  days  before  the  .........  term 

of  said  Court  of  Ordinary. 

...........................  ,  Ordinary. 


ORDER  APPROVING  SETTLEMENT. 


Court  of  Ordinary  for  the  county  of 

State  of  Georgia, Term,  19 .... 

It  appearing  to  the  court  at  this  term  at  which 


ADMINISTRATORS  AND  EXECUTORS  263 

was  duly  cited  by  an  order  passed  at  the term,  19.  .  .  ., 

of  said  court,  and  served  on  him,  to  appear  and  settle  the  estate 

of in  his  hands  as  administrator,  that  there  is  due 

the  said ,  as  appears  from  an  accounting  by  said 

,  the  sum  of dollars ;  it  is,  therefore, 

ordered  that  said  settlement  so  made  by at  this  term 

be,  and  is,  hereby  adjudged  as  correct,  and  that  the  same  be 
recorded  upon  the  minutes  of  this  court;   and  it  is  further 

ordered    that as of 

recover  of  said ,  as  such  administrator  of , 

said  sum ;  and  it  appearing  that  said has  in  his 

hands  the  following  property  of estate,  which,  on 

the  close  of  his  administration  belongs  to (here 

describe  it),  it  is  ordered  that  he  deliver  up  the  same  within 

ten  days  from  this  time  to 

,  Ordinary. 


ORDER  TO   Snow   CAUSE  WHY  THE  ADMINISTRATOR  SHOULD 
BE  ATTACHED  FOR  DISOBEDIENCE  TO  SAID  ORDER. 


Georgia^ County. 

Court  of  Ordinary, Term,  19 .... 

It  being  shown  to  the  court  that ,  as  administrator 

of ,  deceased,  has  not  complied  with  the  order 

passed  at  the term,  19.  .  .  .,  of  this  court,  upon  an 

accounting  and  settlement  of estate,  to  surrender 

to of the  following  property    (here 

describe  it),  set  forth  in  said  order,   it  is  ordered  that  said 

,  as  such  administrator,  appear  before  me  at 

the term,  19.  .  .  .,  of  said  Court  of  Ordinary,  and 

show  cause,  if  any  he  can,  why  he  should  not  be  attached  for 
contempt  in  not  obeying  the  order  aforesaid,  and  that  a  copy  of 

this  order  be  served  on  him  ten  days  before  said. 

term,  19.  . .  .,  of  said  court. 

,  Ordinary. 


FINAL  RECEIPT  OF  DISTRIBUTEE. 


Georgia, County. 

Received  this day  of ,  19 .  .  .  . ,  of 

,  administrator  of ,  deceased,  late  of 

said  county, dollars,  in  full,  entire  and  complete 


264  ADMINISTKATOES  AND  EXECUTORS 

satisfaction  of  all  the  above  right,  claim,  interest,  property  or 
demand  I  now  have,  or  might  have,  in  and  upon  the  estate,  real 

and  personal,  of  said ,  deceased.     And  said 

,  administrator,  as  aforesaid,  of  any  and  all 

further  claim  on  my  part  against  said  estate. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed 
my  seal,  the  day  and  year  above  written. 

[L.  S.]. 

of ,  Deceased. 

Signed,  sealed  and  delivered  in  presence 
of 


.,  J.  P. 


REFUNDING  BOND.     §§4060,  4080. 


Georgia, County. 

Know  all  men  by  these  presents  that  we, 

and ,  his  securities,  are  bound  to , 

administrator  of ,  late  of  said  county,  deceased, 

in  the  sum  of dollars,  for  the  payment  of  which 

we  bind  ourselves  and  our  heirs  jointly  and  severally. 

Signed  and  sealed  this day  of ,  19.  ... 

The  condition  of  the  above  bond  is  this,  that  whereas 

,  administrator  of ,  has  through  proper 

persons  appointed  by  the  Court  of  Ordinary  divided  amongst 

the  several  distributees  of estate,  his , 

and  said has  received  from ,  as 

administrator  of ,  deceased,  his  distributive  share, 

it  being ;  now,  should  said pay  his 

part  of  any  debt  and  claims  which  may  be  hereafter  established 

against  said ,  as  administrator  of , 

deceased,  then  this  bond  to  be  void;  else  remain  in  full  force. 

,  Principal.    [L.  S.] 

,  Security.     [L.  S.] 

Executed  in  the  presence  of,  and  approved 

by  me,  this day  of ,  19. ... 

,  Ordinary. 


ADMINISTRATORS  AND  EXECUTORS  265 

DISMISSION  AND  RESIGNATION.     §§4089-4100. 


PETITION  FOR  DISCHARGE  OF  ADMINISTRATOR.     §4089. 


Georgia, County. 

To  the  Ordinary  of  said  County: 

The  petition  of ,  administrat.  .  .of , 

deceased,  shows  that  he  has  fully  discharged  all  the  duties  of 
such  administrat.  .  .  ;  that  he  has  paid  all  the  debts  of  his  intes- 
tate  ;  has  turned  over  the  residue  on  his  books 

to  the  lawful  heirs  of ;  he,  therefore,  prays  the 

usual*  citation  may  issue,  requiring  all  persons  interested  to 
show  cause,  if  any  they  can,  why  he  should  not  be  discharged 
from  his  administration,  and  while  such  citation  is  running, 
his  proceedings  as  such  administrator  may  undergo  a  thorough 
revision  by  this  court. 

This day  of ,  19 

Administrator. 


ORDER  OF  CITATION. 


Georgia, County. 

Court  of  Ordinary. 
Term,  19 

The  petition  of ,  as  administrator  of , 

deceased,   having  been   filed,   setting  forth   that  he  has   fully 

administered   as   administrator  of ,   deceased, 

late  of  said  county,  all  the  property  and  effects  of  said  deceased, 
according  to  law,  and  praying  for  letters  of  dismission  as  such 
administrator ; 

It  is  ordered  that  citation  issue  and  be  published  according  to 
law,  notifying  the  heirs  at  law  and  the  creditors  of  the  said 

deceased  to  be  and  appear  at  the term  of  this 

court,  and  show  cause,  if  any  they  have  or  can,  why  the  prayer 
of  said  petition  should  not  be  granted. 

Ordinary. 


266  ADMINISTRATORS  AND  EXECUTORS 

CITATION. 


Georgia, County. 

,  administrat.  .  .of ,  deceased, 

represents  to  the  court  in  his  petition,  duly  filed  and  entered  on 

record,  that  he  has  fully  administered estate. 

This  is,  therefore,  to  cite  all  persons  concerned,  kindred  and 
creditors,  to  show  cause,  if  any  they  can,  why  said  administrat .  . 
should  not  be  discharged  from  his  administration,  and  receive 

letters  of  dismission,  on  the  first  Monday  in ,  19 .... 

,  Ordinary. 


ORDER  OF  DISMISSION. 


Court  of  Ordinary, 

Term,  19 

It  appearing  to  the  court  that  the  citation  for  a  discharge 

from  his  administration  of estate,  has  been  duly 

issued  and  published,  and  it  also  appearing  to  the  court  from 

a  thorough  examination  of  all  the  proceedings  of  said 

administrat. .  .of estate,   that   he   has   fully   and 

faithfully  administered  said  estate,  and  is  legally  entitled  to  a 
discharge  from  his  administration,  and  no  sufficient  objection, 
being  offered  to  his  dismission,  this  court  orders  that  he  be  dis- 
charged from  his  administration  of estate,  and 

that  letters  of  dismission  issue  to  him  accordingly. 

Ordinary. 


LETTERS  OF  DISMISSION  FROM  ADMINISTRATION. 


Georgia, County. 

By  the  Honorable  the  Ordinary  of  said  County. 
To  all  whom  these  presents  shall  come  or  be  made  known — 
Greeting : 

Whereas ,  administrat.  .  .of  the  estate  of 

,  deceased,  has  made  application  for  the  dismis- 
sion thereof;  and  on  examination  of  the  inventory  and  return 

of  said  estate having  found  all  and  singular  the 

property  of  said  estate,  which  came  to  the  hands  of  said , 


ADMINISTRATORS  AND  EXECUTORS  267 

well  and  truly  administered,  as  appears  by  the  vouchers  lodged 
in  office,  and  citation  having  issued  in  terms  of  the  law,  calling 
on  those  interested  to  file  exceptions,  if  any  they  had,  why  the 
said should  not  be  dismissed  from  such  adminis- 
tration; and  no  sufficient  objection  having  been  filed,  and  the 
Court  of  Ordinary  of  said  county  having  at  its  regular  term  on 

the day  of ,  19.  .  .  . ,  by  order,  discharged  said 

from  said  administration,  and  ordered  letters  of 

dismission  to  issue : 

We  do,  therefore,  in  pursuance  of  the  powers  vested  in  us, 
and  by  virtue  of  said  order,  issue  these  letters  of  dismission 

from  the  administration  aforesaid,  to  the  said to 

show  his  discharge  whenever  he  may  be  called  in  question. 

Given  under  my  hand  and  seal  of  office  this day 

of..  .  19.. 


Ordinary County. 


REMOVAL  OF  ADMINISTRATION  FOR  FAILURE  TO  GIVE  BOND. 
§$3949-3951. 


Georgia,    County. 

To  the  Court  of  Ordinary  of  said  County : 

The  petition  of shows  that , 

administrator  of  the  estate  of ,  late  of  said 

county,  deceased,  was  appointed  administrator  of  said  estate, 
and  is  acting  as  such  without  having  been  required  to  give  bond, 
with  good  and  sufficient  security  conditioned  for  the  faithful 
discharge  of  his  duty  as  such  administrator  as  required  by  law. 
Petitioner  is  interested  in  said  estate,  being  a  distributee  thereof. 

Petitioner  names ,  of  said  county,  as  a  fit  and 

proper  person  who  is  willing  to  take  the  administration  and, 
give  bond  and  security. 

Wherefore  petitioner  prays  the  court  to  pass  an  order  requir- 
ing said ,  as  administrator  as  aforesaid,  to  give 

bond,  in  a  sum  equal  to  double  the  amount  of  the  said  estate, 
payable  to  the  Ordinary  for  the  benefit  of  all  concerned,  and 
conditioned  for  the  faithful  discharge  of  his  duty  as  such  admin- 
istrator, and  in  default  thereof  that  he  be  removed  from  his 
trust  as  administrator  for  the  said  estate. 

This day  of ,  19 

,  Petitioner. 


268  ADMINISTRATORS  AND  EXECUTORS 

RULE  NISI. 


Court  of  Ordinary, 

Term,  19 

,  having  filed  his  petition  to  this  the 

term  of  said  court  alleging  that ,  the  administrator 

of  the  estate  of ,  deceased,  has  been  appointed 

administrator  of  said  estate,  and  is  acting  as  such,  without 
having  been  required  to  give  bond  and  security  in  terms  of  the 

law,  and  praying  that  said be  required  to  give 

bond  and  security,  or  in  default  thereof  that  he  be  removed  from 
the  administration  of  the  said  estate;  it  is  ordered  that  he  be 
served  with  a  copy  of  said  petition  ten  days  before  the  time  of 

hearing,  and  that  he  show  cause  on  the day  of , 

19.  .  .  .,  if  any  he  has  or  can,  why  he  should  not  give  bond  and 
security  in  terms  of  the  law,  or  in  default  thereof  be  removed 
from  the  administration  of  said  estate. 

This day  of ,  19 

,  Ordinary. 


ORDER  OF  REMOVAL. 


(NOTE:  The  order  of  removal  should  state  the  facts  and  require  the 
giving  of  the  bond  at  a  time  within  15  days,  or  in  default,  that  he  be 
removed.  See  §3951.) 


RESIGNATION  OF  ADMINISTRATOR.     §4095. 


PETITION  TO  BE  ALLOWED  TO  RESIGN.    §4095. 


Georgia, County. 

To  the  Honorable ,  Ordinary  of  said  County : 

The  petition  of respectfully  shows  that  on  the 

day  of ,  19.  .  .  .,  he  was  appointed  by  the 

Court  of  Ordinary  for  said  county  as  administrator  upon  the 

estate  of ,  late  of  said  county,  deceased;  that  he 

qualified  accordingly  and  entered  upon  the  discharge  of  the 
duties  of  said  trust,  and  that  he  has  continued  to  act  as  adminis- 
trator as  aforesaid  until  now. 

Petitioner  has  not  yet  fully  administered  upon  said  estate, 
but  he  desires  to  resign  his  said  trust  because  (state  the  reason 


ADMINISTRATORS  AND  EXECUTORS  269 

for  desiring  to  resign).     Petitioner  names as 

a  suitable  person  qualified  and  entitled,  and  willing  to  accept 
the  trust. 

The  next  of  kin  of  said  intestate  are and 

Wherefore  petitioner  prays  that  citation  may  issue  to  said 

and  to  said  next  of  kin,  to  appear  and  show  cause 

why  said  order  should  not  be  granted. 

this day  of ,19 

,  Administrator. 

Read  and  considered.     Let  citation  issue  as  prayed. 

This day  of ,  19 

,  Ordinary. 


CITATION. 

Georgia, County. 

,  administrator  upon  the  estate  of , 

late  of  said  county,  deceased,  having  filed  his  petition  to  be 

allowed  to  resign  his  said  trust,  this  is  to  cite and 

the  next  of  kin  of  the  intestate,  to  wit, ,  to  show 

cause  before  the  Court  of  Ordinary  for  said  county,  on  the  first 

Monday  in ,  19.  .  .  .,  why  an  order  allowing 

such  resignation  should  not  be  granted,  and 

appointed  in  his  stead. 

This day  of ,  19 

,  Ordinary. 


OKDER  FOR  LETTERS  OF  DISMISSION  TO  ISSUE. 


Georgia, County. 

By  the  Court  of  Ordinary  for  Said  County. 

Whereas, ,  administrator  upon  the  estate  of 

,  deceased,  applied  for  leave  to  resign  his  trust 

as  administrator,  as  aforesaid,  on  account  of  (State  the  reason 
for  resigning).  And  whereas,  it  appears  that  the  petitioner  has 
given  the  notice  required  by  law.  And  it  appearing  that  it  will 
be  to  the  interest  of  said  estate  that  said  administrator  should 
lie  allowed  to  resign.  It  is,  therefore,  ordered,  that  said  admin- 
istrator and  his  securities  be  discharged  from  all  further  liability 
after  having  fairly  settled  his  accounts  with  his  successor  and 
filed  with  the  said  Ordinary  the  receipt  in  full  of  such  successor. 


270  ADMINISTRATORS  AND  EXECUTORS 

And  it  is  further  ordered  that  the  usual  commissions  be  allowed 
the  said  retiring  administrator  up  to  this  date ;  and  that  after 
settlement  with  his  successor,  letters  of  dismission  do  issue  to 
said  administrator,  according  to  law. 

Ordinary. 


BOND  OF  SUCCESSOR. 


Georgia, County. 

We, ,  as  principal,  and ,  as 

security,  both  of  the  county  and  State  aforesaid,  acknowledge 

ourselves  held  and  bound  unto .,  Ordinary  of 

said  county,  for  the  benefit  of  all  concerned,  in  the  sum  of 
dollars,  subject  to  the  following  condition: 

The  condition  of  the  above  obligation  is  as  follows :  Whereas 

,  late  administrator  of  the  estate  of , 

has  resigned  his-  trust.     And  whereas,  said has 

been  appointed  administrator,  as  successor  of  said 

(who  has  adjusted,  with  the  Ordinary,  his  accounts,  touching 

his  administratorship).     Now,  should  the  said 

faithfully  discharge  his  duties  as  such  administrator,  as  required 
by  law,  this  obligation  to  be  void ;  otherwise  of  full  force  and 
effect. 

Signed  with  our  hands  and  sealed  with  our  seals,  this 

day  of ,  19 

Principal    [L.  S.] 

Security     [L.  S.] 

Executed  in  the  presence  of  and  approved 
by  me,  this day  of 1 9 .... 


Ordinary. 


IX.— FOREIGN  EXECUTORS  AND  ADMINISTRA- 
TORS.    §§3880,  4101-4105. 


Certificate  of  judge  to  letters  of  foreign  administrator  must  show  that 
he  presided  in  the  court  from  which  the  record  comes;  clerk's 
certificate  to  this  effect  not  sufficient.  118/874  (2)  (45  S.  E.  672). 


AFFIDAVITS  271 

AFFIDAVITS. 

(NOTE:      The  proper  affidavits  in  the  different  proceedings  will  be 
found  under  the  proper  heads  in  this  volume.) 


ORDINAKY  AFFIDAVIT. 


Georgia, County. 

Personally   came    before    the    undersigned    attesting   officer, 

,  the  subscriber,  who,  being  duly  sworn,  on 

oath  says  that  (Here  state  what  particular  matter  is  desired  to 
be  set  out  as  facts.) 

Sworn  to  and  subscribed  before  me,  this 

day  of ,19 

.,  J.  P. 


[NOTE:  Attention  is  called  here  to  the  duty  of  an  officer  taking  an 
affidavit  to  swear  the  witness  at  the  time  that  he  signs  the  jurat.  A 
proper  way  to  do  this  is  to  say  to  the  affiant,  having  him  to  hold  up 
his  hand:  "You  do  solemnly  swear  that  the  facts  stated  in  this  affidavit 
are  true,  so  help  yon  God." 

An  affidavit  taken  by  administering  the  oath,  "You  do  solemnly  swear 
that  the  facts  stated  in  his  affidavit  are  true  to  the  best  of  your  knowl- 
edge and  belief,"  is  not  a  sufficient  compliance  with  the  law.  For  a 
party  to  sign  an  affidavit  and  the  officer  to  simply  sign  the  jurat,  is  not 
the  taking  of  an  affidavit  in  the  proper  form.  The  affiant  could  not  be 
convicted  of  perjury  on  it  and  on  such  trial  he  would  be  allowed  to 
show  that  he  did  not  swear  to  the  affidavit.  However,  where  the  officer 
signs  the  jurat,  the  presumption  is  that  the  proper  oath  was  admin- 
istered. 

If  the  affidavit  is  to  be  used  in  a  judicial  proceeding,  it  is  best  to 
state  the  case  at  the  beginning.  This  is  absolutely  necessary  in  cases 
of  injunction  before  the  affidavit  can  be  used.  In  a  case  of  injunction 
the  affidavit  should  be  in  the  following  form:] 


INJUNCTION. 


{Application  for  injunction  and 
relief.  In Superior 
Court,  Term,  19.  .. 

Personally    came    before    the    undersigned    attesting    officer 

,  who,  being  duly  sworn,  on  oath  says  that  he 

makes  this  affidavit  to  be  used  as  evidence  for  tin-  plaintiff  on 
the  hearing,  whenever  it  may  be,  of  the  injunction  applied  for 


272  APPEALS 

before  the  Judge  of  the  Superior  Court  in  the  above  named  and 
stated  case,  and  that  (Here  set  out  the  evidence  of  the  witness 
fully  and  explicitly). 


Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

,  J.  P. 


Administration  of  oath  is  necessary.  94/461  (19  S.  E.  247);  14  App.  30 
(79  S.  E.  930),  294  (80  S.  E.  728),  314  (80  S.  E'.  724). 

Attorneys,  authority.  §4955.  Attorney  making  affidavit  must  do  so  in 
his  own  name,  and  not  by  signing  name  of  client.  142/200  (82 
S.  E.  563). 

"Best  of  his  knowledge  and  belief,"  commits  affiant  to  almost  nothing. 
77/256  (3  S.  E.  10).  "Best  of  his  knowledge  and  belief"  does  not 
supply  place  of  positive  statement  of  actual  facts  where  such  state- 
ment is  necessary.  15  App.  293,  300  (82  S.  E.  942). 

In  forma  pauperis.  Since  Act  of  1897  (p.  32),  use  of  word  "or"  instead 
of  "and"  makes  affidavit  fatally  defective.  107/235  (33  S.  E.  48); 
111/838  (36  S.  E.  99);  113/129  (38  S.  E.  303);  114/349  (40  S.  E. 
241). 

"Intituled  in  the  cause,"  affidavit  not  being,  rejected  when.  97/399 
(23  S.  E.  823). 

Proxy:  Swearing  is  personal,  can  not  be  done  by  proxy.  142/200  (82 
S.  E.  563). 


APPEALS.    §§4998-5018. 


APPEAL  AND  BOND  FROM  JUSTICE  COURT. 


vs. 


Suit      on     note     in     Justice 

Court  of  the District, 

G.  M.,  of County. 

Term,  19 ,  and 

judgment   for  plaintiff   for 

$ ,  principal  debt, 

with  interest  and  costs,  on 
day  of ,19... 

Now  conies  the  defendant  in  the  above  named  and  stated 
case,  and  being  dissatisfied  with  the  judgment  rendered  against 
him  therein,  and  first  having  paid  all  costs  that  have  accrued 
in  said  case,  on  this  the day  of ,  19.  .  .  ., 


APPEALS  273 

enters  this  his  appeal  to  a  jury  in  the  Superior  Court,  within 
the  time  prescribed  by  law,  and  brings  ..........  ,  as  security, 

and  they,   ..............  ,  as  principal,  and  .............  , 

as  security,   hereby   acknowledge   themselves   held   and   firmly 
bound  jointly  and  severally  unto  the  plaintiff,  .............  , 

for  the  eventual  condemnation  money  in  said  case. 

Signed  with  our  hands,  and  sealed  with  our  seals,  this  ...... 

day  of  ...............  ,  19  ____ 

.....................  Principal   [L.  S.] 

.....................  Security     [L.  S.] 

Executed  in  the  presence  of  and  approved 
by  me,  this  .....  day  of  ........  ,  19.  ... 

' 


I  hereby  certify  that  the  appellant,   ................  ,  has 

paid  all  the  costs  that  have  accrued  in  the  above  named  and 
slated  case,  wherein  the  appeal  is  entered,  bond  filed  and  appeal 
entered  this  ........  day  of  .  .  ..........  ,  19  .... 

.  J.  P. 


APPEAL  AND  BOND  TO  JURY  IN  JUSTICE  COURT. 


vs. 


Suit  on   note   in   the   Justice 
Court  of  the.  ....  .District, 

G.  M.,  of County. 

Term,  19 ,  and 

judgment   for  plaintiff   for 

,  principal  debt, 

with  interest  and  costs,  on 
the day  of ,19... 

Now  comes  the  defendant  in  the  above,  named  and  stated 
case,  and  being  dissatisfied  with  the  judgment  rendered  against 
him  therein,  and  first  having  paid  all  costs  that  have  accrued 

in  said  case,  on  this  the day  of ,  19. . .  ., 

enters  this  his  appeal  to  a  jury  in  the  Justice  Court  within  the 

time  prescribed  by  law,  and  brings as  security,  and 

they, as  principal,  and ,  as  security, 

hereby  acknowledge  themselves  held  and  firmly  bound  jointly 

and  severally  unto  the  plaintiff, ,  for  the  eventual 

condemnation  money  in  said  case. 


274  APPEALS 

Signed  with  our  hands  and  sealed  with  our  seals,  this 
day  of  .....................  ,19  ____ 


Principal. 

............................  ....(L.S.) 

Security. 

Executed  in  the  presence  of  and  approved 
by  me,  this  .....  day  of  ........  ,  19.  ... 

.............................  ,J.P. 

I  hereby  certify  that  the  appellant,  .................  ,  has 

paid  all  the  costs  that  have  accrued  in  the  above  named  and 
stated  case,  wherein  the  appeal  is  entered,  bond  filed  and  appeal 
entered  this  ......  day  of  ............  ,  19  .... 


APPEAL  IN  FORMA  PAUPERIS.     §5010. 


Georgia, County. 

Suit   on   note    in   the   Justice 

Court  of  the District, 

G.  M.,  of County. 

Term,  19 .  .  .  . ,  and 

vs.  judgment  rendered  for 
plaintiff  for  $ ,  prin- 
cipal, besides  with  interest 

and  costs,  on day  of 

,19.... 

In  the  above  named  and  stated  case,  comes  now . , 

the  defendant,  and  being  dissatisfied  with  the  judgment  against 

him,  enters  on  this  the day  of ,  19 .  .  .  . ,  his 

appeal  in  said  case  to  a  jury  in  the  superior  court,  and  being 
duly  sworn,  on  oath  says  that  he  is  advised  and  believes  that  he 
has  good  cause  of  a'ppeal,  and,  that  owing  to  his  poverty,  he  is 
unable  to  pay  the  costs  or  give  security  required  in  cases  of 
appeal. 

Sworn  to  and  subscribed  before  me,  this 
the day  of ,  19 

, ,J.P. 

The  foregoing   affidavit   filed   and   appeal   entered   this   the 
day  of ,19 

,  J.  P. 


ARBITRAMENT  AND  AWARD  275 

Affidavit  in  forma  pauperis  must  be  in  disjunctive.     107/235  (33  S.  E. 

48);   111/838    (36  S.  E.  99);    113/129   (38  S.  E1.  303);    114/349    (40 

S.  E.  241). 
Amendment  of  bond  permissible,  where  opposite  party  not  prejudiced. 

17  App.  446  (1-a)   (87  S.  E.  709).    See  Code,  §5707. 
Obligee's  name  left  blank,  bond  good,  when.     122/856   (50  S.  E.  930). 
Partner's  affidavit  that  he  enters  "his  appeal"  is  not  appeal  by  firm. 

118/514   (45  S.  E.  314). 
Proxy,  affidavit  can  not  be  made  by.     99/637    (26  S.  E.  60);   142/200 

(82  S.  E,  563). 
Statute  was  substantially  complied  with,  where  bond  was  made  payable 

to  a  named  company,  "in  the  above-stated  case,"  referring  to  case 

in  which  that  company  was  named  as  plaintiff.     18  App.  616   (89 

S.  E.  1100). 


ARBITRAMENT  AND  AWARD.     §§5019-5054. 


SUBMISSION.     §5021. 


Georgia,  -. County. 

This  agreement  made  and  entered  into  this day 

of ,  19 .  .  .  . ,  between ,  of  the  county 

of ,  and ,  of  the  county  of , 

both  of  said  State. 

Witnesseth:  That  there  exists  between  the  above  named 
parties  certain  differences  and  disputes  in  reference  to  (here  set 
forth  true  and  accurate  statements  of  the  matters  in  contro- 
versy submitted,  and  any  other  matters  that  may  be  pertinent 
to  said  submission)  

The  said contends  that 

The  said contends  that 

For  the  purpose  of  satisfactorily  adjusting  said  differences  and 
disputes,  it  has  been  agreed  by  the  said  parties  that  the  matters 
in  dispute  between  them,  touching  the  several  contentions  above 

mentioned,  be  submitted  to ,  chosen  by  said , 

and ,  chosen  by  said ,   and , 

selected  by  the  aforesaid  arbitrators  chosen  by  the  parties. 

Let  the  arbitrators,  after  they  have  made  up  their  award, 
furnish  each  of  the  parties  with  a  copy  thereof,  and  return  the 
original  award  to  the  Superior  Court  of  said  county,  to  be  en- 
tered on  the  minutes  of  said  court. 


276  ARBITRAMENT  AND  AWARD 

CHOICE  OF  THIRD  ARBITRATOR.     §5032. 


We,  the  undersigned,  chosen  as  arbitrators  by 

and ,  under  the  foregoing  submission,  in  order  to 

carry  o.ut  the  same,  choose,  as  the  third  arbitrator 

Given  under  our  hands  and  seals  this.  .  .day  of ,  19.  . 

: [L.S.] 

[L.S.] 


OATHS  OF  ARBITRATORS.     §5037. 


Georgia, County. 

We,  and  each  of  us,  do  solemnly  swear  that  we  will  impar- 
tially determine  the  matters  of  controversy  existing  between 

and ,  touching ,  according  to 

law  and  the  justice  and  equity  of  the  case  without  favor  or 
affection  to  either  party. 


Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

,  J.  P. 


[NOTE. — The  arbitrators  may  administer  this  oath  to  each  other, 
§5037,  or  subscribe  same  before  any  officer  of  this  State  qualified  to 
administer  an  oath.] 


ORDER  APPOINTING  TIME  AND  PLACE  OF  HEARING.     §5034. 


We,  the  undersigned  arbitrators,  selected  as  above  stated, 
under  the  articles  of  submission  as  above  stated  by  the  arbi- 
trators and  by  the  parties,  do  hereby  appoint  as  the  time  and 
place  for  trying  the  matters  so  referred  to  us  under  the  fore- 
going submission,  the day  of ,  19 .  . .  . ,  at .  .  .  . , 

in county,  at  the  hour  of  ten  o'clock  a.  m. 

This day  of ,19 


ARBITRAMENT  AND  AWARD  277 

NOTICE  GIVEN  BY  ARBITRATORS  TO  THE  PARTIES.     §5034. 


Georgia, County. 

To and :     You  are  hereby  notified 

that  the  undersigned  arbitrators  will  meet  (state  the  time  and 
place  of  meeting),  for  the  purpose  of  hearing  and  determining 
the  matters  in  controversy  existing  between  you,  touching.  .  .  . 
This.'. day  of ,..,  19 


Arbitrators. 


[NOTE. — Ten  days'  notice  of  the  time  and  place  of  meeting  should  be 
given  to  the  parties  (§5034),  unless  waived  by  agreement,  in  which 
case  the  order  appointing  the  time  and  place,  should  recite,  "The  parties 
now  agreeing  before  us  to  the  time  and  place  above  indicated  and  waiv- 
ing all  further  or  other  notice."] 


AWARD  OF  ARBITRATORS.     §§5046-5048. 


Georgia, County. 

We,  the  undersigned,  chosen  as  arbitrators  to  decide  the  mat- 
ters submitted  in  the  foregoing  articles  of  reference,  signed  by 

and ,  being  first  duly  sworn,  having  given 

proper  notice  of  the  time  and  place  of  meeting,  having  also  given 
said  matters  due  consideration,  and  heard  both  parties  under 
oath  as  to  the  facts  of  said  dispute  and  differences,  and  the 
evidence  adduced,  do  decide  and  agree  as  follows,  to  wit: 

(1)  We  find  and  award ." 

(2)  We  further  find  and  award 

This day  of ,  19 


Arbitrators. 


[NOTE. — Arbitrators  failing  to  agree,  any  two  of  them  may  make  the 
award,  and  when  made  it  has  the  same  force  and  effect  as  if  made  by 
all  three  of  them.  §5046.] 


278  ARBITRAMENT  AND  AWARD 

JUDGMENT  OF  THE  COUKT. 


Superior  Court, County. 

Term,  19 

In  the  matter  of  controversy  touching ,  between 

and ' ,  submitted  in  writing  to  the 

arbitration  of ,    and , 

who  have  proceeded  to  make  their  award,  and  have  filed  the 
same  with  the  Clerk  of  this  Court;  it  is,  on  motion,  ordered 
that  said  award  be  received  and  entered  on  the  minutes  and  be 
made  the  judgment  of  this  court,  and  that  execution  issue 

accordingly,  and  further  that be  allowed  to  enter 

up  judgment  against. for  the  costs. 

Judge  Superior  Court County. 

Plaintiff's  Attorney. 


SUBMISSION  WHEN  SUIT  is  PENDING.    §5054. 


Georgia, County. 

Whereas,  there  is  pending  in Superior  Court 

the  case  of against ,  the  same  being 

an  action  of  complaint,  and  whereas  all  parties  are  desirous  of 
settling  said  controversy  without  further  litigation  and  delay, 
they  have  hereby  agreed  to  submit  said  controversies  to  the 

judgment  and  award  of ,  chosen  by , 

and cfrosen  by ,  and , 

chosen  by  the  aforementioned  arbitrators.  When  the  said  arbi- 
trators shall  have  decided  upon  their  award,  and  reduced  the 
same  to  writing,  the  same  shall  be  returned  by  them,  or  one  of 

them,  to  the  Superior  Court  of county,  to  be  made 

the  judgment  thereof,  as  provided  by  law. 

This day  of ,  19 


[NOTE. — The  arbitrators  should  make  oath,  and  give  notice  to  the 
parties,  as  suggested  in  the  preceding  forms.] 


ARBITRAMENT  AND  AWARD  279 

SUBMISSION  AND  AWARD. 


}  Complaint  in Court 
No ,  Term, 
19.. 


Whereupon  it  is  ordered  and  adjudged  by  the  court  that  the 
award  in  this  case  be  entered  on  the  minutes  of  said  court,  and 

be  made  the  judgment  thereof,  and  that ,  the 

,  have  leave  to  enter  up  judgment  against 

.for  the  sum  of dollars  and 

cents  principal,  with  interest  and  cost  of  same,  as  found  by  said 
arbitrators. 

Judge  Superior  Court County. 

Plaintiff's  Attorney. 


EXCEPTIONS  TO  AWARD.     §5049. 


}  Arbitration  and  award.  Award  re- 
turned to  Superior  Court  of 
County,  
Term,  19 

The  award  of  the  arbitrators  in  the  above  stated  case  having 
been  returned  to  the  said  court,  and  entered  upon  the  minutes 

thereof,  as  provided  by  law,  now  comes ,  one  of 

the  parties  thereto,  at  the  term  to  which  said  award  is  returned, 
and  on  oath  says  that  the  award  was  the  result  of  accident  (or, 
mistake,  or  the  fraud  of  some  one  of  the  arbitrators  or  is  other- 
wise illegal — set  out  particularly  the  ground  of  exception). 
Wherefore,  deponent  prays  that  the  court  shall  cause  an  issue 
to  be  made  up  and  the  same  to  be  tried  by  a  special  jury,  and 
that  the  said  award  may  be  vacated  or  set  aside,  as  provided 
by  law. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


Judge  Superior  Court. 


280  ARBITRAMENT  AND  AWARD 

PETITION  IN  ACTION  ON  AWARD. 


'  L  Award  in Superior  Court 

Term,    19.... 


The  petition  of shows  to  the  court  the  following 

facts : 

(1)  That  on  the day  of .,19 ,  there 

existed  between  the  plaintiff  and  defendant,  a  resident  of  said 
county,   certain  differences   and  disputes,   touching-  (state  the 
matter  of  controversy). 

(2)  On  the day  of ,  19 ,  the  plaintiff 

and  defendant  mutually  agreed  in  writing  to  submit  the  matters 
in  dispute  to  arbitrators. 

(3)  A  copy  of  said  submission  is  hereto  attached,  (or,  with- 
out attaching  the  copy,  the  plaintiff  may  state  fully  the  substance 
of  the  same). 

(4)  That  under  said  submission arbitrators 

were  selected,  to  wit, , , 

(5)  That  the  said  arbitrators,  after  due  notice,  met  at  the 
time  and  place  notified  therein,   and  after  hearing  evidence, 
rendered  the  following  award:     (Set  out  a  copy  of  the  award.) 

(6)  That  the  said  award  was  made  in  pursuance  of  the 
submission  and  conformed  to  the  same  in  material  respects. 

(7)  That  the  same  was  made  within  the  time  limited  (if 
there  was  such  time),  and  with  the  formality  required  by  the 
submission. 

(8)  That  the  sum  of dollars  awarded  to  your 

petitioner  has  not  been  paid  by  the   defendant  or   any  part 
thereof,  but  he  has  wholly  failed  to  perform  the  award,  and  the 
plaintiff  brings  this  action  to  recover  the  amount  of  said  award, 
to  wit,  the  sum  of dollars  with  interest  and  costs. 

Wherefore,  petitioner  prays  that  process  may  issue  requiring 
the  defendant  to  be  and  appear  at  the  next  term  of  said  court 
to  answer  to  petitioner's  complaint. 

Petitioner's  Attorney. 


[NOTE. — The  form  of  the  above  petition  was  approved  in  112/438,  440 
(37  S.  E1.  755).] 


ASSIGNMENT  281 

Certainty  in  award  is  essential.     8/8;   69/100,  726;   71/860. 

Clerical  error  disregarded,  when.     117/388  (43  S.  E.  726). 

Misnomer  in  middle  name  of  referee,  not  vitiate  award.  81/265  (7 
S.  E'.  173). 

Oath:  Ground  for  setting  award  aside  that  oath  administered  to  arbi- 
trators was  different  from  that  prescribed  by  statute.  113/166  (38 
S.  E.  315).  Oath  not  essential  when  submission  under  common 
law.  113/1088  (39  S.  E.  489).  Exceptions  to  award  should  be 
under  oath.  59/459;  see  76/692. 

Petition  in  action  on  award  need  not  set  forth  evidence  on  which  award 
was  based,  nor  need  a  copy  of  the  award  be  attached.  112/438  (37 
S.  E.  755).  Defendant  may  plead  that  matter  was  not  brought 
before  the  arbitrators,  without  filing  copy  of  testimony.  54/500. 

Seal:  Award  of  land  which  submission  directs  to  be  in  writing  need 
not  be  under  seal.  8/8. 

Signing  by  umpire  alone,  or  by  umpire  and  one  of  the  arbitrators,  is 
good.  73/92. 


ASSIGNMENT.     §§3230-3248. 


ARTICLES  OF  ASSIGNMENT. 


Georgia, County. 

This  indenture,  made  this day  of ,  19.  .  .  ., 

between ,  of ,  in  said  county  and 

State,  of  the  first  part,  and ,  of , 

of  the  second  part. 

Witnesseth,  that  the  said  party  of  the  first  part,  for  and  in 

consideration  of  the  sum  of ,  to  him  in  hand  paid 

by  the  party  of  the  second  part,  the  said  party  of  the  first  part 
has  granted,  assigned,  transferred  and  set  over,  and  by  these 
presents  does  grant,  assign,  transfer,  set  over  and  convey,  unto 
the  said  party  of  the  second  part,  the  following  articles  and 
items  of  property,  to  wit:  (here  set  out  fully  and  in  separate 
items  the  notes,  accounts,  etc.,  and  each  and  every  item  and 

article  of  property  assigned),  amounting  to  the  sum  of 

dollars  in  the  aggregate,  together  with  all  the  sums  of  money, 
either  principal  or  interest,  which  may  be  collected  from  all  or 
any  of  the  persons,  firms  or  corporations  before  mentioned,  as 
the  debtors  or  in  anywise  liable  to  the  party  of  tlio  first  part  by 
means  of  the  said  (notes,  accounts,  debts,  balances,  claims  and 
demands)  as  aforesaid ;  hereby  giving  and  granting  to  the  said 


282  ASSIGNMENT 

party  of  the  second  part, heirs  and  assigns,  full  power 

and  authority  to  ask,  demand  and  receive,  sue  for  and  recover 

to own  use,  the  sum  of dollars,  with 

interest  thereon,  and  to  give  all  necessary  receipts,  discharges 
and  acquittances,  for  the  same  or  any  part  thereof. 

To  have  and  to  hold  the  said  (notes,  accounts,  debts,  balances, 
claims  and  demands)  as  aforesaid,  unto  the  said  party  of  the 
second  part,  to  the  only  proper  use,  benefit  and  behoof  of  the 
said ,  ....  heirs  and  assigns  forever. 

In  witness  whereof,  the  said  party  of  the  first  part  has  here- 
unto set hands  and  affixed seal,  the  day  and 

year  above  written. 

• [L.  S.] 

IL.  S.] 

Signed,  sealed  and  delivered  in  presence 

of 


,  J.  P. 


ASSIGNMENT  OF  LEASE. 


Georgia, County. 

For  and  in  consideration  of  the  sum  of dollars, 

cash  in  hand  paid  (the  receipt  whereof  is  hereby  acknowledged), 

I, ,  do  by  these  presents  assign  and  set  over  to 

,  of ,  without  recourse  on  me, 

the  within  lease,  to  the  only  proper  use,  benefit  and  behoof  of 
the  said ,  his  heirs,  executors  and  administrators. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed 

my  seal,  this day  of ,  19 .... 

- [L.  S.] 

Signed,  sealed  and  delivered  in  presence 

of 


,  J.  P. 


No  special  form  of  words  is  necessary,  under  Code,  §3653,  if  language 
used  shows  intention  of  owner  to  transfer  chose  in  action.  132/498 
(64  S.  B.  264);  14  App.  520  (1)  (81  S.  E.  595).  See  17  App.  451 
(87  S.  E.  754). 


ATTACHMENT  283 

ATTACHMENT.     §§5055-5126. 


AFFIDAVIT.    §5074. 


Georgia, County. 

Before  me,  the  subscriber,  a in  and  for  said 

county, ,  personally  appeared , 

and  on  oath  says  that. is  indebted  to  him  in  the 

sum  of ^dollars,  and  that  the  said 

resides  out  of  the  State  (or,  state  any  other  ground  of  attach- 
ment) . 

Sworn  to  before   me,   this day 

of ,19 

,  J.  P. 


[NOTE. — It  is  safer  to  state  the  ground  in  the  exact  language  of  the 
Code.  The  affidavit  may  be  made  by  the  party,  his  agent  or  attorney, 
or  one  partner  or  joint  creditor,  and  may  be  made  before  some  judge 
of  the  Superior  Court,  judge  of  the  county  court,  or  justice  of  the  peace, 
or  notary  public  ex-officio  J.  P.,  §§5056,  5058.] 


BOND.     §5074. 


Georgia, County. 

We ,  principal,  and ,  security, 

acknowledge  ourselves  bound  unto in  the  sum 

of dollars  (double  the  debt  sworn  to),  subject  to 

the  following  conditions: 

That  the  said ,  principal,  is  seeking  an  attach- 
ment against  the  said ,  which  is  now  about  to  be 

sued  out,  returnable  to  the term  of  the 

court  of  the  county  aforesaid ;  now,  if  the  said 

shall  pay  all  damages  that  the  said may  sustain, 

and  also  all  costs  that  may  be  incurred  by  him  in  consequence 

of  suing  out  such  attachment,  in  the  event  that  the  said 

shall  fail  to  recover  in  said  case,  then  this  bond  to  be  void, 
otherwise  of  full  force  and  effect. 

Principal    [L.    S.] 

Security    [L.   S.] 

Executed  in  the  presence  of  the  under- 
signed, this day  of 19.  ... 

J-   P. 


284  ATTACHMENT 

AFFIDAVIT  BY  ATTORNEY  AT  LAW. 


Georgia, .  County. 

Before  me,  the  subscriber,  a  Justice  of  the  Peace  in  and  for 

said  county, ,  personally  appeared , 

and  on  oath  says  that  he  is  the  attorney  at  law  for 

in  the  present  proceeding,   and   that resides  out 

of  the  State,  and  that  to  the  best  of  afljant's  knowledge  and 

belief is   indebted  to in  the   sum 

of.  .  .dollars. 


Attorney  at  Law  for, 
Sworn  to  and  subscribed  before  the  under- 
signed this day  of ,  19.  ... 

,  J.  P. 


BOND. 

Georgia, County. 

We, ,  principal,  and ,  security, 

acknowledge  ourselves  bound  unto in  the  sum 

of dollars,  subject  to  the  following  conditions: 

That  the  said ,  principal,  is  seeking  an  attach- 
ment against  the  said ,  which  is  now  about  to  be 

sued  out,  returnable  to  the term  of  the  Superior  Court 

of  the  county  aforesaid ;  now,  if  the  said shall 

pay  all  damages  that  the  said may  sustain  and 

also  all  costs  that  may  be  incurred  by  him  in  consequence  of 

suing  out  such  attachment,  in  the  event  that  the  said 

shall  fail  to  recover  in  said  case,  then  his  bond  to  be  void, 
otherwise  of  full  force  and  effect. 

Principal    [L.  S.] 

By  his  Attorney  at  Law 

.". Security     [L.  S.] 

Executed  in  the  presence  of  the  under- 
signed, this day  of ,  19.  ... 


ATTACHMENT  285 

WRIT  OF  ATTACHMENT.     §5074. 


Georgia, County. 

To  All  and  Singular  the  Sheriffs  and  Constables  of  said  State : 

You  are  hereby  commanded  to  attach  and  seize  so  much  of 

the  property  of as  will  make  the  sum  of 

dollars  and  all  costs,  and  also  to  serve  such  summons  of  garnish- 
ment as  may  be  placed  in  your  hands,  and  that  you  make  return 
of  this  attachment,  with  your  actings  and  doings  entered  thereon, 

to  the term  of  the  Superior  Court  of  said  county,  to 

which  court  this  attachment  is  hereby  made  returnable.  Hereof 
fail  not. 

Witness  my  hand  and  seal  this.  .  .day  of ,  19.  ... 

[L.  S.] 


LEVY. 

Georgia, County. 

Executed  the  within  and  foregoing  attachment  on  this  date 

in  this  county  at o'clock, M.,  by  levying  the  same 

on , 

as  the  property  of  the  defendant, ,  and  said 

property  being  found   in  his  possession.      This day 

of. ..." ,  19 

Sheriff. 


RETURN  OF  OFFICER. 


Georgia, County. 

Executed  the  within  and  foregoing  attachment  on  this  date 

in  this  county  at o'clock,.  .  .  .M.,  by  serving  the  following 

summonses  of  garnishment  which  were  placed  in  my  hands  by 

,  J.  P.,  to  wit,  one  summons  of  garnishment 

upon and  one  upon ,  being  personal 

upon  each  garnishee,  and  I  make  this  my  return  thereof. 

Sheriff. 


286  ATTACHMENT 

ATTACHMENT  FOR  PURCHASE  MONEY.     §§5083-5087. 
AFFIDAVIT.     §5085. 

Georgia, County. 

Personally  came  before  me, ,  the  undersigned, 

a  justice  of  the  peace,  in  and  for  said  county, , 

who,  being  duly  sworn,  on  oath  says  that is  justly 

indebted  to  him  in  the  sum  of .dollars  for  the 

purchase  price  of  lot  of  land,  No in  the 

district  and section  of county, 

containing  forty  acres,  more  or  less,  which  is  now  in  the  posses- 
sion of  said ;  that  said  debt  is  now  due,  and 

affiant  makes  this  affidavit  that  an  attachment  may  issue  in  said 

case  against  said for  the  purchase  price  of  said 

property! 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


J.  P. 


BOND.     §5085. 


Georgia, County. 

We, ,  principal,   and ,  security, 

acknowledge  ourselves  bound  unto in  the  sum 

of dollars,  subject  to  the  following  conditions: 

That  the  said ,  principal,  is  seeking  an  attach- 
ment against  the  said ,  which  is  now  about  to  be 

sued  out,  returnable  to  the term  of  the  superior 

court  of  the  county  aforesaid ;  now  if  the  said shall 

pay  all  damages  that  the  said may  sustain,  and 

also  all  costs  that  may  be  incurred  by  him  in  consequence  of 

suing  out  such  attachment,  in  the  event  that  the  said 

shall  fail  to  recover  in  said  case,  then  this  bond  to  be  void. 

(L.S.) 

Principal. 

.....(L.  S.) 

Security. 

Executed  in  the  presence  of  the  under- 
signed, this ,  19 .... 


J.  P. 


ATTACHMENT  287 

WRIT.     §5086. 


Georgia, County. 

To  All  and  Singular,  the  Sheriffs  and  Constables  of  said  State, 
Greeting : 

You  are  hereby  commanded  to  attach  and  seize  for  the  pur- 
pose of  making  the  sum  of dollars  purchase 

money  and  all  costs,  lot  of  land,  number in  the ...... 

district  and section  of County, 

containing  forty  acres,  more  or  less,  and  at  present  in  possession 

of ,  defendant  in  attachment,  and  that  you  make 

return  of  this  attachment,  with  you»  acts  and  doings  entered 

thereon,  to  the term,  19.  .  .  .,  of  the  superior  court 

of  said  county,  to  which  term  this  attachment  is  hereby  made 
returnable.     Hereof  fail  not. 

Witness  mv  hand  and  seal  this day  of ,  19.  ... 

.' (L.S.) 


RETURN  OF  OFFICER. 


Georgia, County. 

I  have  this  day  levied  the  within  attachment  upon  lot  of  land, 

No in  the district  and 

section  of County,  containing  forty  acres,  more 

or  less,  as  the  property  of .  . ,  defendant,  who  is  in 

possession,  and  I  have  given  him  actual  notice  of  this  levy  by 
serving  him  personally  with  a  copy  in  writing  of  this  levy. 

This ,  19 

Sheriff,1 


DECLARATION  IN  ATTACHMENT. 


Georgia, County. 

To  the  Superior  Court  of  Said  County: 

The  petition  of ,  plaintiff  in  attachment, 

alleges  as  follows: 

1st.     That .  .is  indebted  to  him  in  the  sum 

of dollars  besides  interest,  on  a  certain  note 

dated ,  19 .  .  .  . ,  and  due ,  19 .  .  .  . , 

a  copy  of  which  is  hereto  attached  and  marked  "Exhibit  A." 


288  ATTACHMENT 

2nd.  The  defendant  has  failed  and  refused  to  pay  said  note 
or  any  part  thereof. 

3rd.  That  said  note  was  given  as  the  purchase  price  of  lot 

of  land,  No in  the district  and 

section  of County,  containing  forty  acres,  more  or 

less,  in  the  making  of  which  trade .executed  to 

said a  bond  for  title  conditioned  to  make  good 

and  sufficient  deed  upon  the  payment  of  said  note. 

4th.  That  upon  the  refusal  of  said to  pay  said 

note,  petitioner  took  out  an  attachment  for  the  purchase  money 

of  said  lot  of  land  on  the day  of ,  19 .  .  .  . , 

before .,  a  justice  of  the  peace  of  said  county, 

which  said  attachment  was  made  returnable  to  the 

term,  19.  .  .  .,  of superior  court,  and  which  attach- 
ment was  levied  by ,  sheriff  of  said  county,  on 

the.  ....  .day  of ,  19.  .  .  .,  upon  the  said  described 

property,  and  the  said ,  sheriff,  gave  the  said 

.  . actual  notice  of  the  levy  of  said  attachment,  by 

serving  him  personally  with  a  copy  of  said  levy  in  writing. 

Wherefore,  petitioner  files  this  his  declaration  in  said  attach- 
ment and  prays  judgment  for  his  said  debt,  interest  and  costs, 
and  also  that  said  land  be  sold  to  satisfy  the  said  debt,  principal 
and  interest,  and  that  the  proceeds  be  applied  in  said  way. 

Attorney  for  Petitioner. 


NOTICE  TO  DEFENDANT. 


Georgia, County. 


'  I    Attachment  in Superior 

Court, Term,  19 .... 


You  are  hereby  notified  that  an  attachment  sued  out  by  me 

against  you  on  the day  of ,  19 .  .  .  . , 

returnable  to  the term  of  the  superior  court  of 

said  county,  was  on  the day  of ,  19 .... 

levied  by ,  lawful  sheriff  of  said  county,  on  the 

following  property  as  your  property,  to  wit: 

Lot  of  land,  Number in  the district  and 

section  of County,  containing  forty  acres, 

more  or  less ;  that  at  the term  of  said  court,  the  same 


ATTACHMENT  289 

being  the  term  to  which  said  attachment  was  made  returnable, 
a  declaration  was  filed  as  required  by  law,  and  the  said  attach- 
ment is  now  pending  in  said  court.  This ,  19.  ... 


By  his  Attorney  at  Law, 


[NOTE. — Make  out  original  and  copy  of  this  notice  given  to  the 
sheriff;  have  him  serve  the  defendant  in  attachment  with  the  copy; 
make  the  following  entry  on  the  original,  and  return  the  original  to 
the  clerk  of  the  superior  court,  where  it  shall  be  filed.] 


Georgia, County. 

I  have  this  day  served  the  defendant  in  attachment, 

,  personally,  with  a  true  copy  of  the  within  notice. 

This ,  19 

Sheriff. 


RETURN  OF  OFFICEE. 


Georgia, County. 

I  have  this  day  levied  the  within  judgment  upon  lot  of  land, 

Number in  the district  and section 

of County,  containing  forty  acres,  more  or  less,  as 

the  property  of ,  defendant,  who  is  in  possession, 

and  I  have  given  him  personal  and  actual  notice  of  this  levy 
this  day  in  writing.     This day  of ,  19.  ... 

"Sheriff." 


TO  DEFENDANT. 


Plaintiff  in  Attachment, 


vs. 


Attachment  in Superior 

.     Court,   returnable  to 


Term.  19 


Defendant  in  Attachment. 
To : 

You  are  hereby  notified  that  I  have  this  day  levied  the  above 
named  and  stated  attachment  against  you  upon  lot  of  land, 
Number.  .  ,  .in  the.  .  .  .district  and.  ,  .  .  .section 


290  ATTACHMENT 

of County,  containing  forty  acres,  more  or  less, 

and  said  attachment  has  been  made  returnable  to  the 

term,  19.  .  .  . ,  of Superior  Court. 

This day  of ,  19 

Sheriff. 


(NOTE. — It  would  not  be  necessary  to  put  this  levy  upon  the  execution 
docket  where  the  plaintiff  in  attachment  has  retained  the  title  as 
security,  but  in  all  other  cases  it  is  necessary  to  enter  this  levy  on  the 
execution  or  attachment  docket  of  the  clerk  of  the  superior  court 
within  ten  days,  in  order  to  make  the  levy  good  against  third  persons. 
See  Code,  §5077.) 


JUDGMENT. 


L  Attachment  in Superior 

Court, Term,  19 


This  case  coming  on  for  a  hearing,  and  the  same  being  upon 
an  unconditional  contract  in  writing,  and  there  being  no  issuable 
plea  filed  on  oath,  judgment  is  rendered  without  the  interven- 
tion of  a  jury,  and  judgment  in  attachment  is  hereby  rendered 

in  favor  of ,  plaintiff  in  attachment,  against 

,  defendant  in  attachment,  for  the  sum  of 

dollars,  principal  debt,  and dollars  and 

cents,  interest  to  judgment,  and dollars,  costs, 

and  lot  of  land,  Number ,  in  the district,  and 

section  of county,  containing  forty 

acres,  more  or  less,  and  it  is  ordered  that  said  land  be  sold  and 
the  proceeds  thereof  be  applied  on  said  attachment,  with  the 

lien  of  the  attachment  dating  from ,19 It 

being  made  to  appear  that  the  plaintiff  in  attachment 

gave  to  the  defendant  in  attachment, ,  notice  of 

the  pendency  of  the  attachment  and  the  proceedings  had  thereon 

on ,  19.  .  .  .,  it  is  further  considered,  ordered 

and  adjudged  that have  a  general  judgment 

against ,  and  judgment  is  hereby  rendered  in 

favor  of against for  the  sum  of 

dollars,  principal  debt,  and dollars 

and. cents,  interest  to  judgment,  with  8%  interest  on 

the  principal  debt  from  this  date,  and dollars, 


ATTACHMENT  291 


costs  of  suit.     Judgment  signed  this day  of, 

19.. 


Judge  of  the  Superior  Court. 


DEED  OF  PLAINTIFF  IN  ATTACHMENT  TO  DEFENDANT  IN  AT- 
TACHMENT FOR  PURPOSE  OF  LEVY  WHERE  BOND  FOR  TITLE 
HAS  BEEN  GIVEN  AND  PLAINTIFF  IN  ATTACHMENT 
HAS  RETAINED  TITLE. 


Georgia, County. 

This  indenture  made  this  the day  of ,  19.  . .  . , 

between ,  party  of  the  first  part,  and , 

party  of  the  second  part,  and  each  of  said  parties  being  residents 
of county,  witnesseth : 

Whereas,  on ,  19 .  . .  . ,  

executed  to ,  his  promissory  note  for 

dollars,  with  interest  thereon  at  the  rate  of  8%  per  annum  for 

the  purchase  money  of  lot  of  land,  number in  the 

district  and section  of county,  and , 

on ,  19.  .  .  .,  took  out  an  attachment  against 

the  said for  the  purpose  of  collecting  the  said 

purchase  money,  which  said  attachment  has  been  levied  by 

,  sheriff,  of  said  county,  upon  said  land,  and 

actual  notice  of  said  levy  has  been  given  to  the  said 

Now,  therefore,  in  order  to  enforce  said  attachment,  and  for 
the  purpose  of  the  sale  of  said  land,  and  in  consideration  of  the 

premises  and  in  consideration  of  one  ($1.00)  dollar, 

hereby  sells  and  conveys,  and  by  these  presents  does  sell  and 
convey,  unto  the  said  party  of  the  second  part,  his  heirs  and 
assigns,  all  the  following  described  property,  to  wit: 

All  that  tract  or  parcel  of  land  known  and  described  upon 

the  land  map  of county  as  lot  of  land,  Number 

in  the district  and section  of 

county,  containing  forty  (40)  acres,  more  or  less,  with  all  the 
rights,  members  and  appurtenances  thereto  belonging  or  in  any- 
wise appertaining  thereto. 

To  have  and  to  hold  the  above  described  property,  together 
with  all  the  rights  and  members  thereunto  belonging,  to  the  said 
party  of  the  second  part,  his  heirs,  executors,  administrators  and 
assigns  forever,  in  fee  simple. 


292  ATTACHMENT 

And  the  said  party  of  the  first  part,  the  above  described 
property,  unto  the  said  party  of  the  second  part,  his  heirs, 
executors,  administrators  and  assigns,  and  against  all  and  every 
other  person  or  persons,  shall  and  will  warrant  and  forever 
defend  by  virtue  of  these  presents. 

In  witness  whereof,  the  said  party  of  the  first  part  has  here- 
unto set  his  hand  and  affixed  his  seal,  the  day  and  year  above 
written. 

(SEAL) 

(SEAL) 

Signed,  sealed  and  delivered  in  the  pres- 
ence of: 


,,  J.  P. 


ATTACHMENT  AGAINST  FRAUDULENT  DEBTOR.     §§5088-5093. 


Georgia, County. 

To  Honorable ,  Judge  of  the  Superior  Court 

of  Said  County: 

The  petition  of respectfully  shows : 

1st.     That ,  of  said  county,  is  indebted  to 

petitioner  in  the  sum  of dollars  on  a  certain 

promissory  note  dated ,  19 .  .  .  . ,  and 

due ,  19 .  .  .  . ,  together  with  interest  from 

date  at  the  rate  of  8%  per  annum,  a  copy  of  which  said  note  is 
hereto  attached  marked  Exhibit  "A." 

2nd.     That  the  said is  threatening  to  conceal 

his  property  liable  for  the  payment  of  said  debt  for  the  purpose 
of  avoiding  the  payment  of  same. 

Wherefore,  your  petitioner  prays  the  issuance  of  an  attach- 
ment by  your  honor  against  all  the  property  of  the  said 

liable  to  attachment. 

Petitioner's  Attorney. 


AFFIDAVIT  OF  PETITIONER. 


Georgia, County. 

Personally  appeared  before  me, ,  who, 


ATTACHMENT  293 

being  duly  sworn,  upon  oath  says  that  the  statements  contained 
in  the  foregoing  petition  are  true. 

Sworn  to  and  subscribed  before  me,  this 
..day  of ,19 

j.  p. 


ORDER  FOR  ATTACHMENT  TO  ISSUE. 


Office  of  Judge  of  Superior  Court, 

At  Chambers, ,  Ga., 19 .... 

The  above  and  foregoing  petition  for  attachment  coming  on 
for  a  consideration,  it  is  considered,  ordered  and  adjudged  that 
the  said  petition  be  granted  and  the  attachment  issue  as  prayed 
therein.  This ,  19 .... 

Judge  of  the  Superior  Court. 


(NOTE:  Any  justice  of  the  peace  or  officer  authorized  under  law,  after 
the  granting  of  the  foregoing  order,  can  issue  the  attachment  and  take 
the  bond.  No  one  but  the  judge  of  the  superior  court  can  issue  an 
attachment  in  said  case,  but  after  he  issues  the  attachment,  that  is, 
orders  the  issuing  of  the  attachment,  any  officer  authorized  by  law  can 
issue  the  attachment  and  take  the  bond.) 


PETITION  FOR  REMOVAL,  OF  ATTACHMENT.     §5091. 


Georgia,    County. 

To  Hon .  .  . ,  Judge  of  the  Superior  Court 

of  Said  County: 

The  petition  of respectfully  shows : 

1st.     That  on  the day  of ,   19.  .  .  .,   at 

the  instance  of ,  an  attachment,  without  a  hearing 

on  the  part  of  your  petitioner,  was  issued  by  your  Honor  against 
the  property  of  petitioner,  which  was,  by  the  sheriff  of  said 

county,  on  the  said day  of ,  19.  .  .  .,  levied 

upon  the  following  property  of  your  petitioner,  to  wit: 

,  located 

in ,  in  the  town  of ,  Georgia. 

2nd.  Your  petitioner  avers  that  in  truth  and  in  fact  he  has 
not  concealed,  nor  has  he  threatened  to  conceal,  and  he  does  not 
conceal,  any  of  his  property  liable  for  the  payment  of  his  debts, 
for  the  purpose  of  avoiding  the  payment  of  the  same,  or  for  any 


294  ATTACHMENT 

other  purpose.  But  on  the  contrary,  your  petitioner  fully  in- 
tends to  pay  said  note,  and  in  truth  and  in  fact,  is  using  every 
honest  endeavor  to  raise  the  funds  for  that  purpose. 

Wherefore,  petitioner  prays  that  said  attachment  may  be  dis- 
missed and  removed. 

Petitioner's  Attorney. 


ORDER  OF  COURT. 


The  foregoing  petition  read  and  considered :  Let  the  plaintiff 
in  attachment  show  cause  before  me,  at  Judge's  Chambers  in 

the  court-house  of  said  county,  on  the day  of , 

19.  .  .  .,  why  the  prayer  of  the  foregoing  petition  should  not  be 
allowed,  and  the  attachment  therein  mentioned  be  removed. 

Let  the  petitioner  in  attachment  be  served  with  a  copy  of  the 

above  petition,  and  of  this  order,  on  or  before  the day 

of .,19 This day  of ,19 


Judge  Superior  Court, Circuit. 


JUDGAIENT  OF   COURT  ON  HEARING  OF  ATTACHMENT. 


Defendant  in  Attachment 


.-a:  •      A,,  Fraudulent  debtors  attachment. 

Plaintiff  in  Attachment 

Superior  Court. 

vs  y 

In  Equity. 


Hearing ,  19 , 


This  case  coining  on  to  be  heard  before  me  at  chambers,  pur- 
suant to  order  granted,  rafter  hearing  the  evidence  and  argument 
of  counsel,  it  is  ordered  and  adjudged  by  the  court  that  the 
property  attached  as  the  property  of  the  defendant,  to  wit : .  .  .  . 

,  be  sold,  and  that  the  plaintiff  recover  out  of 

the  proceeds  of  the  sale  thereof  the  sum  of dollars, 

principal,  with  interest  to  date  at  the  rate  of  8%  per  annum,  and 
all  future  interest  on  the  principal  sum  at  the  rate  of  8%  per 

annum,  together  with  the  further  sum  of dollars 

and cents  as  costs  of  suit.    This ,  19 .... 

Judge  Superior  Court. 


ATTACHMENT  295 

DKCJ.AKATKKX  ix  ATTACHMENT.     §5102. 


Georgia,  . .  .' County. 

To  the  Superior  Court  of  Said  County : 

The  petition  of respectfully  shows : 

1st.     That is  indebted  to  him  in  the  sum 

of dollars,  besides  interest  at  the  rate  of  eight 

per  cent,  per  annum,  on  a  certain  promissory  note  dated , 

19 .  . .  . ,  and  due ,  19 .  .  .  . ,  bearing  interest  from 

the  date  thereof,  a  copy  of  said  note  being  hereto  attached, 
marked  Exhibit  "A." 

2nd.  That  said  defendant  has  not  paid  the  said  note,  or  any 
part  thereof. 

3rd.     Petitioner  further  shows  that  in  order  to  enforce  the 

collection  of  said  note  he  did,  on  the day  of , 

19 .  .  .  . ,  sue  out  before  Hon ,  judge  of  the 

superior  court  of  said  county,  an  attachment  against  the  said 

,  returnable  to  the term,  19 .  . .  . ,  of 

said  court,  which  attachment  was,  by  the  sheriff  of  said  county, 
levied  upon  the  following  property,  as  the  property  of  the  de- 
fendant, to  wit : 

Wherefore,  your  petitioner  prays  judgment  for  his  said  debt, 
and  for  the  sale  of  the  property  levied  upon  as  aforesaid,  and 
that  the  proceeds  arising  therefrom  shall  be  applied  to  the  pay- 
ment and  satisfaction  of  said  debt. 

Petitioner's  Attorney. 


NOTICE  TO  DEFENDANT.     §5103. 


Plaintiff  in  Attachment 

vs. 


Attachment 


-In Superior  Court, 

Term,    19 

Defendant  in  Attachment  . 

To : 

You  are  hereby  notified  that  an  attachment  sued  out  by  me 

against  you  on  the day  of ,  19.  .  .  .,  returnable 

to  the term  of  the  superior  court  of county, 


296  ATTACHMENT 

was,  on  the day  of ,  19 . . . . ,  levied  by  the 

sheriff  of  this  county   upon   the  following  property,   as  your 

property,  to  wit : ;  that  at 

the term,  of  said  court,  the  same  being  the  term  to 

which  said  attachment  was  made  returnable,  a  declaration  was 
filed  as  required  by  law,  and  the  said  attachment  is  now  pending 
in  said  court.  This day  of ,  19.  ... 

Plaintiff  in  Attachment. 


KEPLEVY  BOND.     §§5113,  5114. 


Georgia, County. 

Know  all  men  by  these  presents,  that  we , 

principal,  and ,  as  security,  acknowledge  our- 
selves jointly  and  severally  bound  unto in  the  sum 

of dollars,  for  the  payment  of  which  we  bind 

ourselves,  our  heirs,  executors  and  administrators,  jointly  and 
severally  by  these  presents : 

The  condition  of  the  foregoing  obligation  is  such  that,  whereas, 
the  said has  applied  for  and  obtained  an  attach- 
ment under  the  hand  and  seal  of  the  superior  court  of  said 

county,  in  favor  of  the  said against , 

returnable  to  the term,  19.  .  .  . ,  of  said  court,  and  the 

said  attachment  being  for  the  sum  of „  .  .  .dollars, 

and  which  attachment  the  sheriff  of  said  county  has  this  day 
levied  upon as  the  property  of  the  said 


Now,  therefore,  should  the  said pay  to  the  said 

plaintiff,   ,  the  amount  of  the  judgment  and 

costs  that  he  may  recover  in  said  case,  then  this  obligation  to  be 
void ;  else  of  full  force  and  effect. 

(SEAL) 

Principal. 

(SEAL) 

Security. 

Taken  and  approved  by  me,  this 

day  of ,    19 


Sheriff. 


ATTACHMENT  297 

TRAVERSE  OF  GROUND  OF  ATTACHMENT.     §5106. 


In  the  Justice  Court  of  the , 
District,  G.  M.,  of 


Plaintiff  in  Attachment 

vs. 

County. 
Defendant  in  Attachment  ^ 

And  now  comes  the  defendant  in  the  above  stated  case,  at 
this  the  return  term  of  said  attachment,  being  the  term  to  which 
said  attachment  was  returned,  and  denies  the  truth  of  the  state- 
ments in  the  affidavit  made  for  attachment  in  the  above  stated 
case,  to  wit :  that  defendant  is  about  to  remove  without  the  limits 
of  the  county,  and  traverses  said  allegation.  On  the  contrary, 
he  says  that  he  is  now,  and  has  been  a  resident  of  this  county 
for  more  than  five  years,  and  that  it  is  his  intention  to  remain 
a  resident  of  this  county. 

And  of  this  the  defendant  puts  himself  upon  the  country. 

Defendant. 


ADVERTISEMENT  OF  LEVYING  OFFICER. 


Georgia,  .  . County. 

Will  be  sold  on  the day  of ,  19.  .  .  .,  before 

the  court-house  door  in  the  city  of ,  in  the  county 

of ,  Georgia,  between  the  lawful  hours  of  sale  to 

the  highest  bidder  for  cash, 

now  located  at in  said  city  of 

,  Georgia,  levied  on  as  the  property  of 

to  satisfy  an  attachment  in  favor  of ,  returnable 

to  the  superior  court  of County,  Georgia,  at  the 

term,  19.  .  .  .,  thereof.     On  account  of  the  expense 

of  moving  said same  will  be  sold  at  the  time  and 

place   aforesaid,   and  delivery  made  on  the  premises  of  said 


By  order  of  the  lion ,  Judge  of  said  court, 

this day  of ,  19.  ... 

Sheriff. 


298  ATTORNEYS  AT  LAW 

Affidavit  in  attachment  for  purchase  money  stating  that  defendant  "is 
indebted"  is  equivalent  to  word  "due,"  employed  in  §5085  of  the 
Code.  13  App.  743  (79  S.  E.  946).  Affidavit  stating  grounds 
equivocally  may  be  amended.  144/105,  106  (86  S.  E.  234).  Amend- 
ment allowed  as  to  references  to  defendants  as  individuals  or  as  a 
firm.  144/348,  350  (87  S.  E.  278).  Affidavit  must  contain  descrip- 
tion of  property,  and  such  description  sworn  to  positively.  74/526. 
Affidavit  must  show  debt  due.  77/45.  Affidavit  must  be  positive 
as  to  ground.  87/724  (13  S.  E1.  744).  Notary  public  may  take 
affidavit.  44/454.  Affidavit  not  looked  to,  in  aid  of  declaration. 
113/261  (38  S.  E.  856). 

Declaration  amendable  by  adding  address  to  superior  court.  143/185 
(84  S.  E.  540).  Not  necessary  to  allege  that  defendant  has  re- 
plevied  property  seized.  145/233  (2)  (88  S.  E.  930).  Amendment 
allowable  to  show  jurisdiction  of  defendant.  13  App.  276,  278  (79 
S.  E.  167).  Amendment  of  declaration.  119/648  (2)  (46  S.  E.  859). 
Declaration  should  allege  levy  on  specified  property.  66/575  (2). 

Form  pursued,  where  one  prescribed;  if  not,  substantial  compliance 
with  all  legal  requirements  necessary.  18/283. 

Identity  of  party  in  writ  uncertain,  affidavit  and  bond  may  be  looked 
to.  94/260  (2)  (21  S.  E.  460). 

Traverse  need  not  be  verified.    47/359. 


ATTORNEYS  AT  LAW.     §§4930-4083. 


KILE  AGAINST  ATTORNEY  FOR  FAILING  TO  PAY  OVER  MOXKY 
COLLECTED.    §4954. 


PETITION  FOR  RULE  NISI. 


Georgia, County. 

To  the  Hon ,  Judge  of  the  Superior  Court 

of  said  County: 

1.  The  petition  of shows,  that  on  the 

day  of ,  19.  .  .  .,  the  petitioner  placed  in  the  hands 

of ,  an  attorney  at  law,  residing  in  said  State  and 

county,  a  certain  note  signed  by ,  dated , 

payable  one  year  after  date,  for  the  sum  of  $1,000.00,  besides 
interest  at  the  rate  of  1%  per  annum  from  the  date  of  said  note. 

2.  That  said ,  as  his  attorney  at  law,  agreed 

with  petitioner  that  he  would  collect  said  note  and  pay  over  the 
proceeds  thereof  when  collected  to  your  petitioner,  after  deduct- 
ing therefrom  the  sum  of per  cent,  of  the  amount  collected 

a-  attorney's  fees. 

3.  That  your  petitioner's  said  attorney  on  the day 

of ,   19 .  .  .  . ,   collected   from said 


ATTORNEYS  AT  LAW  299 

note,  principal  and  interest,  to  wit,  the  sum  of 

dollars,  for  and  on  account  of  your  petitioner. 

4.  That  the  said ,  attorney  as  aforesaid, 

illegally  and  wrongfully  failed  and  refused,  although  a  legal 
demand  in  writing  was  made  upon  him  therefor,  to  pay  over 
to  your  petitioner  the  whole  or  any  part  of  said  sum  so  collected, 
without  just  warrant  or  authority,  and  without  petitioner's  con- 
sent, and  still  retains  the  same,  contrary  to  law. 

Wherefore,  your  petitioner  prays  that  a  rule  nisi  may  issue 

against  said ,  attorney  as  aforesaid,  requiring  him 

to  show  cause,  on  the  first  day  of  the  next  term  of  said  court, 

to  be  held  in  and  for  said  county,  on  the day  of 

next,  if  any  he  has,  why  he  does  not  pay  over  to  petitioner  the 
money  so  collected  as  aforesaid,  and  why  said  rule  should  not 
be  made  absolute,  or  in  default  thereof  that  he  be  attached  for 
contempt. 

Attorney  for  Petitioner. 

Georgia, County. 

Personally    came   before    the   undersigned    attesting   officer, 

,  petitioner  in  the  above  and  foregoing  petition, 

who,  being  duly  sworn,  on  oath  says  that  the  facts  and  things 
stated  in  the  foregoing  petition  are  true. 

Sworn  to  and  subscribed  before  me,  this 
the day  of ,  19 


EULE  NISI. 

Georgia, County. 

In  the  Superior  Court  of  said  county, term,  19.  ... 

It  appearing  by  the  petition  of that  on  the 

day  of the  said : placed  in  the 

hands  of  the  said ,  an  attorney  at  law,  residing  in 

said  county,  for  collection,  a  certain  note  signed  by for 

the  sum  of  $1,000.00  besides  interest,  as  more  fully  described 

in  the  foregoing  petition,  and  that  the  said ,  as 

attorney  as  aforesaid,  in  due  course  collected  said  note,  principal 

and  interest,  to  wit,  the  sum  of  $ ,  from  the  said 

,  the  maker  thereof ;  and  it  further  appearing 

that  after  legal  demand  made  in  writing  upon  the  said 


300  ATTORNEYS  AT  LAW 

for  the  proceeds  of  the  collection  so  made  as  aforesaid,  the  said 

failed  and  refused  to  pay  over  to  said 

the  said  sum  so  collected,  or  any  part  thereof. 

It  is,  therefore,  ordered,  that  the  said ,  attorney 

as  aforesaid,  show  cause  at  the  next  term  of  the  Superior  Court 

of  said  county,  to  be  held  in  and  for  said  county,  on  the 

day  of »....,  19 .  .  .  . ,  if  any  he  has,  why  he  has  not 

paid  over  the  sum  alleged  to  have  been  collected  by  him  or  any 
part  thereof,  and  why  this  rule  should  not  be  made  absolute,  and 
in  default  of  such  showing  that  he  show  cause  why  he  should 
not  be  attached  for  contempt. 

It  is  further  ordered  that  the  said ,  attorney  as 

aforesaid,  be  served  with  a  copy  of  said  petition  and  of  this 
order days  before  the  next  term  of  said  court. 

Judge  Superior  Court Circuit. 

Petitioner's  Attorney. 


RULE  ABSOLUTE. 


'  '  '  \  Rule  against  Attorney  in , 

Superior  Court. 


It  appearing  to  the  court  that  a  rule  nisi  in  the  above  stated 
case  was  issued  from  said  Superior  Court,  and  that  a  copy  of 

the  petition  and  the  said  rule  has  been  served  upon 

attorney  at  law,  resident  in  said  county,  requiring  him  to  show 
cause  why  he  has  not  paid  over  the  money  collected  by  him  from 

.  at  the  instance  of as  his  attorney 

at  law,  or  in  default  thereof,  that  said  rule  nisi  be  made  abso- 
lute and  that  he  show  cause  why  he  should  not  be  attached  for 

contempt ;  and  it  further  appearing  that  the  said , 

attorney  at  law  as  aforesaid,  has  failed  to  show  any  lawful 

cause  why  he  has  not  paid  over  to  the  said the 

money  so  collected  as  aforesaid. 

It  is,  therefore,  ordered  by  the  court  that  the  said 

attorney  as  aforesaid,  be,  and  he  is,  hereby  required  and  ordered 

to  pay  over  to  the  said or  his  lawful  attorney,  the 

said  sum  of dollars  principal  and 

dollars  interest,  or  in  default  thereof  that  he  be  attached  for 
contempt  of  court  and  be  committed  by  the  sheriff  of  this  court 


AUDITORS  301 

to  the  county  jail  of  said  county  until  he  purges  himself  of  this 
contempt. 

Granted  this day  of ,  19.  ... 

Judge  Superior  Court Circuit. 

Petitioner's  Attorney. 


ATTACHMENT  FOB  CONTEMPT. 


Georgia, County. 

To  the  Sheriff  of  said  County,  or  His  Lawful  Deputies: 

A  rule  absolute  having  at  the term,  19.  .  .  .,  of  the 

Superior  Court  of  said  county,  held  on  the day 

of ,  19 .  .  .  . ,  been  granted  against. , 

an  attorney  at  law,  requiring  him  to  pay  over  to 

or  his  attorney,  the  sum  of dollars  principal,  and 

dollars  interest  to  the  date  of  said  rule,  or  in 

default  thereof  that  he  be  attached  for  contempt,  and  he  having 
made  default; 

This  is,  therefore,  to  command  you  to  arrest  the  body  of  the 

said ,  attorney  as  aforesaid,  and  commit  him  to 

the  county  jail  of  said  county,  there  to  be  confined  and  safely 
kept,  without  bail  until  he  purge  himself  of  contempt  aforesaid, 
by  paying  over  the  aforesaid  sums  of  money  to  the  said  plaintiff 
or  his  lawful  attorney. 

Witness  the  Hon. ,  Judge  of  said  court,  this 

day  of ,  19 

Clerk  Superior  Court County. 


AUDITOKS.     §§5127-5140. 


APPLICATION  FOK  APPOINTMENT  OF  AUDITOR. 


JOHN  DOE          *]         Suit  on  note  in Superior  Court, 

vs.  and  pleas  of  payment  and  usury  by 

RICHARD  ROE       J  defendant. 

To  the  Honorable. ,  Judge  of  the  Superior  Court: 

The  petition  of  John  Doe  in  the  above  named  and  stated  case 
shows  to  the  court  the  following  facts : 


302  AUDITORS 

In  the  above  named  and  stated  case,  the  defendant  therein 
has  filed  pleas  of  payment  and  usury  which  involve  matters  of 
account  and  matters  of  law,  and  your  petitioner  shows  that  said 
case  is  a  proper  one  to  be.  referred  to  an  auditor. 

Wherefore,  your  petitioner  prays  that  an  order  requiring  the- 
defendant  in  said  case  to  show  cause  before  your  Honor  in  vaca- 
tion why  an  auditor  should  not  be  appointed  therein  to  pass 
upon  the  said  matters  of  account  and  all  questions  in  said  case. 

Attorney  for  Plaintiff. 


OKDEB  OF  JUDGE  TO  SHOW  CAUSE  WHY  AUDITOR  SHOULD  NOT 
BE  APPOINTED. 


Office  of  Judge  of  Superior  Court. 

At  Chambers, Ga., ,  19 .... 

The  above  and  foregoing  petition  having  been  presented  to 

me,  it  is  ordered  that  the  defendant, ,  show  cause 

before  me  on  the day  of ,  19.  .  .  .,  at  nine 

o'clock,  A.  M.,  at  Chambers,  why  the  prayer  of  the  petitioner 
should  not  be  had  and  allowed.  Let  the  defendant  be  served 
ten  days  before  the  hearing  with  a  copy  of  this  petition  and 
order. 


Judge  of  the  Superior  Court. 

Due  and  legal  service  of  the  within  and  foregoing  petition 
and  order  is  hereby  acknowledged  and  all  other  and  further 
service  is  hereby  waived.  This ,  19.  ... 

Attorney  for  Defendant. 


ORDER  OF  JUDGE  APPOINTING  AUDITOR. 


Office  of  Judge  of  Superior  Court. 

At  Chambers, Ga., ,  19 .... 

The  above  and  foregoing  application  for  the  appointment  of 
auditor,  coming  on  for  a  hearing  and  after  considering  the  same, 

it  is  considered,  ordered  and  adjudged  that be, 

and  is,  hereby  appointed  auditor  in  said  case  to  pass  upon  all 
questions  of  law  and  fact  involved  in  said  case  and  to  determine 


AUDITORS  303 

the  same  and  report  his  findings  to  this  court  twenty  days  before 
the  next  term  thereof. 

Judge  of  the  Superior  Court. 


OATH  OF  AUDITOR. 


Georgia, County. 

Personally   came   before    the   undersigned    attesting   officer, 

,  who,  being  'duly  sworn,  on  oath  says  that  he 

has  been  appointed  auditor  in  the  case  of 

vs ,  pending  in superior  court,  and 

affiant  says  that  he  will  render  a  true  report  therein,  according 
to  law  and  the  evidence,  without  favor  or  affection  to  either 
party. 

Sworn  to  and  subscribed  before  me,  this 
the day  of * . . .  .,  19.  ... 


Clerk  of  Superior  Court. 


NOTICE  GIVEN  BY  AUDITOR. 


(State  the  case.) 
To  Each  of  the  Parties  Hereto,  or  Their  Counsel : 

You  are  hereby  notified  that  I  shall  hear  the  above  stated 

case,  under  the  order  of  reference  to  me  as  auditor,  on  the 

day  of ,  19 .  . .  . ,  at  my  office  in  the  town  of 

,  in  said  county,  at o'clock,  . .  .  .  M. 

This day  of ,  19 

Auditor. 

Due  and  legal  service  of  the  within  and  foregoing  notice  of 
hearing  is  hereby  acknowledged  and  all  other  and  further 
service  is  hereby  waived.  This  the day  of ,  19.  ... 


Defendant's  Attorney. 


304  AUDITORS 

REPORT  OF  AUDITOR.     §§5131-5134. 


(State  the  case.) 
The  above  stated  case  having  been  referred  to  me  as  auditor, 

on  the day  of ,  19 . . . . ,  by  the  Hon , 

Judge  of  the  Superior  Court  of county,  to  investigate 

and  to  pass  upon  all  questions  of  law  and  fact  arising  upon  the 
pleading,  and  the  evidence  adduced  on  the  hearing  thereof,  do 
hereby  report  the  result  of  my  investigation,  and  the  findings 
of  the  auditor  are  as  follows : 

1.  Defendant's  counsel  moved  to  strike  the  amendment  of 
the  declaration  contained  in  the  record,  which  ha.d  been  previ- 
ously allowed  by  the  court  in  open  court.     This  motion  the 
auditor  disallowed,  as  being  without  authority  to  entertain  such 
motion. 

2.  .  Plaintiff  moved  to  amend  the  declaration  filed  in  said 
case,  so  as  to  claim  attorney's  fees,  which  motion  the  auditor 
allowed,  over  the  objection  of  defendant's  attorney  that  the  court 
could  not  entertain  such  motion. 

3.  The  plaintiff  demurred  to  that  part  of  the  defendant's 
plea  of  payment,  in  which  the  defendant  set  forth,  at  the  con- 
clusion of  said  plea,  that  "at  divers  other  times,  the  defendant 
made  divers  other  payments  on  said  note,  aggregating  in  the 
sum  of  $375.00,"  the  auditor  sustained  said  demurrer  and  struck 
that  portion  of  the  defendant's  plea,  -holding  that  the  amend- 
ment must  give  the  dates  and  amounts  of  each  of  such  payments 
and  to  whom  same  were  made. 

4.  After  hearing  the  defense  and  argument  of  counsel,  I 
find  that  the  main  questions  involved  are  questions  of  fact.     I 
further  find  that  the  plaintiff  has  proved  his  claim  to  the  satis- 
faction of  the  auditor.     I  further  find  that  there  is  no  usury  in 
said  note. 

I,  therefore,  find  in  favor  of  the  plaintiff  on  the  issues  of 

fact  in  the  case,  and  against  the  defendant  the  sum  of  $ 

principal,  and  $ ,  interest,  and  $ ,  being  10% 

for  attorney's  fees,  with  costs  of  suit. 

5.  I  classify  my  findings  1,  2,  3,   as  above  set  forth,  as 
findings  of  law,  and  those  set  forth  in  par.  4,  as  my  findings 
upon  questions  of  fact. 


AUDITORS  305 

I  attach  to  this  report  a  copy  of  the  evidence  adduced  on  the 
trial. 

This day  of ,  19 

Auditor. 


Award  so  indefinite  and  uncertain  as  not  to  be  capable  of  enforcement, 
void.  107/354  (33  S.  E.  406);  120/442  (47  S.  E.  951). 

Items  composing  findings  should  be  so  specified  that  party  desiring  to 
except  may  be  enabled  to  ascertain  what  have  been  allowed  and 
what  disallowed.  133/193  (65  S.  E.  416);  144/69  (86  S.  E.  236). 

Sufficiency  of  report  as  to  clearness  in  statement,  classification  of 
rulings  and  findings.  118/530  (45  S.  E.  421). 


EXCEPTIONS   TO  AUDITOR'S  REPORT.      §§5135-5139. 


And  now  comes  the  defendant  and,  as  matter  of  law,  excepts 
to  the  ruling  and  judgment  of  the  auditor  as  set  forth  in  par.  3 
of  his  report  sustaining  the  demurrer  of  the  plaintiff  to  the 
portion  of  the  defendant's  plea  of  payment,  and  striking  this 
portion  of  said  plea.  The  part  of  the  plea  referred  to  is  in  the 
following  words:  "At  divers  other  times  the  defendant  made 
divers  payments  on  said  note,  aggregating  in  the  sum  of 
$375.00."  Defendant  says  said  allegation  was  sufficiently  defi- 
nite and  precise  to  meet  the  requirements  of  the  law,  and  that 
the  auditor  erred  in  striking  the  same. 

2.  Defendant  further  excepts  as  matter  of  fact,  to  the  finding 
of  the  auditor  as  set  forth  in  par.  4  of  his  report,  and  particu- 
larly to  that  portion  of  the  auditor's  report  in  which  he  finds 
generally  in  favor  of  the  plaintiff,  a  certain  specified  sum, 
without  specifying  therein  the  portion  of  the  evidence,  or  other- 
wise identifying  the  items  of  payment  plead  allowed  or  dis- 
allowed by  him  in  the  calculation  resulting  in  the  finding  of 
such  balance. 

Wherefore,  petitioner  prays  the  court  that  his  exceptions  may 
be  sustained  and  the  report  of  the  auditor  be  disallowed.  (Green 
v.  Valdosta  Guano  Co!,  121/131  (2),  135;  48  S.  E.  984). 

Defendant's  Attorney. 


306  BAIL,  IN  ACTIONS  FOR  PERSONALTY 

Classified  as  "exceptions  of  law"  and  "exceptions  of  fact,"  exceptions 

should  be.     122/135  (50  S.  E'.  35). 
General  exceptions,  not  distinctly  pointing  out  error  complained  of, 

without  legal  merit.    104/42  (30  S.  E.  513) ;  113/742  (39  S.  E.  287) ; 

124/165   (52  S.  E.  65). 
Testimony  excepted  to  should  be  set  out.     119/983   (47   S.  E.  582); 

125/159   (53  S.  E.  1004). 
Verification  of  grounds  of  exception  to  report.    119/983  (47  S.  E.  582). 


JUDGMENT  OF  THE  COURT. 


The  exceptions  filed  by  the  defendant  to  the  findings  of  the 
auditor  in  the  within  case  having  been  considered,  after  argu- 
ment heard  thereon,  it  is  ordered  that  the  defendant's  excep- 
tions to  par.  3  of  the  auditor's  report  be  overruled. 

It  is  further  ordered  that  the  defendant's  exception  to  par.  4 
of  the.  auditor's  report  be  overruled,  and  this  being  a  case  at 
law,  it  is  ordered  that  the  questions  of  fact  arising  thereon  be 
tried  by  jury. 

This day  of ,  19 

Judge  of  the  Superior  Court. 


BAIL  IN  ACTIONS  FOK  PERSONALTY.     §§5150-5156. 


PETITION. 

Georgia, County. 

To  the  Superior  Court  of  Said  County: 

The  petition  of  John  Doe,  as  plaintiff,  against  Richard  Roe, 
as  defendant,  shows  the  following  facts: 

1st.     That  Richard  Roe  is  a  resident  of  said  county. 

2nd.  That  Richard  Roe  is  in  possession  of  a  certain  Jersey 
bull  of  a  mouse  color  of  medium  size  about  five  years  old,  having 
the  two  hind  feet  white,  known  by  the  name  of  "Jerome  Del- 
mas,"  and  of  the  value  of  $200.00,  to  which  said  bull  plaintiff 
claims  title. 

3rd.  Plaintiff  further  shows  that  said  bull  is  of  the  value 
of  $5.00  per  month  for  hire. 

4th.  Plaintiff  further  shows  that  he  has  demanded  possession 
of  said  bull  from  defendant  and  which  demand  the  defendant 
has  refused  previous  to  the  bringing  of  this  suit. 


BAIL  IN  ACTIONS  FOR  PERSONALTY  307 

Wherefore,  plaintiff  prays  process  may  issue  requiring  the 

defendant  to  be  and  appear  at  the  next  term  of Superior 

Court  to  answer  plaintiff's  suit. 

Attorney  for  Plaintiff. 


AFFIDAVIT.    §5150. 


Georgia, County. 

In  person  before  the  undersigned,  a in  and  for 

said  county,  came ,  who  on  oath  says,  that  he  has 

this  day  instituted  an  action  of  trover  against . .,  of 

said  county,  returnable  to  the  next term  of  the 

Superior  Court  for  said  county,  to  recover  a  certain  Jersey  bull, 
of  mouse  color,  of  medium  size,  about  five  years  old,  having  the 
two  hind  feet  white,  known  by  the  name  of  "Jerome  Delmas," 
and  of  the  value  of  two  hundred  dollars.  That  the  said  bull  is 

now  in  the  possession,  custody  or  control  of  the  said , 

and  that  deponent  has  reason  to  apprehend  that  the  said  bull 
has  been  or  will  be  eloigned  or  moved  away,  and  will  not  be 
forthcoming  to  answer  the  judgment,  execution  or  decree  that 
shall  be  made  in  said  case;  that  he  claims  for  the  reasonable 

hire  of  the  said  bull  from  the day  of ,  19. . .  ., 

to  the day  of ,  19 . . . . ,  the  sum  of 

dollars,  and  that  he  does  verily  and  bona  fide  claim  said  prop- 
erty above  described. 


Sworn  to  and  subscribed  before   me,   this 
day  of ,  19 

J.  P.  (or  Notary  Public  and  ex-officio  J.  P.). 


(NOTE:  The  affidavit  having  been  made,  it  should  be  filed  in  the 
office  of  the  clerk  of  the  court,  and  a  copy  thereof  attached  to  the 
original  petition  and  also  to  each  copy  or  copies  issued  thereon.) 


Description  of  property  must  be  such  as  to  make  it  capable  of  identifi- 
cation and  seizure.  108/342  (33  S.  E,  974).  Insufficient  description 
of  money,  see  139/756  (78  S.  E.  172),  108/342  (33  S.  E.  974), 
115/580  (41  S.  E.  987). 


308  BAIL  IN  ACTIONS  FOB  PERSONALTY 

BAIL  BOND. 


Georgia, County. 

We, ,  as  principal,  and ,  as 

security,  acknowledge  ourselves  jointly  and  severally  bound  unto 

,  his  heirs  and  assigns,  in  the  sum  of 

dollars,  for  the  true  payment  of  which  we  hereby  bind  ourselves, 
our  heirs,  executors  and  administrators,  -firmly  by  these  presents. 

Signed,  sealed  and  dated  this day  of ,  19.  ... 

The  condition  of  the  above  obligation  is  as  follows : 

having  instituted  his  action  against for  the 

recovery  of  a  certain  Jersey  bull,  of  mouse  color,  of  medium 
size,  about  five  years  old,  having  the  two  hind  feet  white,  known 
by  the  name  of  "Jerome  Delmas,"  and  of  the  value  of  two 

hundred  dollars,  and  the  hire  of  said  bull  from  the day 

of last  past,  to  the day  of ,  19.  .  ., 

of  the  value  of dollars,  which  action  is  returnable 

to  the  next term  of  the  Superior  Court  of  said  county, 

and  he  having  made  oath  that  he  has  reason  to  apprehend  that 
the  said  personal  property  has  been  or  will  be  eloigned  or  moved 
away,  and  will  not  be  forthcoming  to  answer  the  judgment, 
execution,  or  decree  that  shall  be  made  in  said  case; 

Now  should  the  said produce  or  cause  to  be 

produced  and  forthcoming  the  said  bull,  to  answer  the  judgment, 
execution  or  decree  that  may  be  rendered  in  said  case,  and  shall 
well  and  truly  pay  the  eventual  condemnation  money,  whatever 
it  may  be,  then  this  bond  to  be  void,  otherwise  of  force. 

Principal   [L.  S.] 

Security     [L.  S.] 

Executed  in  the  presence  of  and  approved 
by  me  this day  of ,  19 .... 


Sheriff. 


BOND  WHERE  PLAINTIFF  TAKES  POSSESSION  OF  THE 
PROPERTY.     §5151. 


Georgia, County. 

.     We, ,  principal,  and ,  security, 

acknowledge  ourselves  jointly  and  severally  bound  unto 


BAIL  IN  ACTIONS  FOB  PERSONALTY  309 

in  the  sum  of dollars,  subject  to  the  following 

conditions : 

having  instituted  his  action  returnable  to 

the  next .term  of  the  Superior  Court  of  said  county, 

for  the  recovery  of  a  certain  Jersey  bull,  of  mouse  color,  of 
medium  size,  about  five  years  old,  having  the  two  hind  feet 
white,  known  by  the  name  of  "Jerome  Delmas,"  of  the  value 

of dollars,  and  required  bail  of  the  said 

and ,  sheriff  of  said  county,  having  seized  said 

bull,  and  the  said having  failed  to  give  the  bond 

required  by  law  in  such  cases  made  and  provided ;  and  the  said 

,  plaintiff  in  the  action  aforesaid,  desiring  to 

take  said  bull  into  his  possession : 

Now  if  the  said shall  produce  or  cause  to  be 

produced  and  forthcoming  the  said  bull,  to  answer  the  judgment, 
execution,  or  decree  that  shall  be  made  in  said  case,  then  this 
bond  to  be  void,  else  of  force. 

Witness  our  hands  and  seals  this.  .  .  .day  of ,  19.  ... 

, Principal   [L.  S.] 

Security     [L.  S.] 

Executed  in  the  presence  of  and  approved 
by  me,  this day  of ,  19.  ... 


Sheriff. 


PETITION  OF  DEFENDANT  CONFINED  UNDER  BAIL  PROCESS. 

§5154. 


(State  the  case.) 

Georgia, County. 

To  the  Hon .' ,  Judge  of  Superior  Court  of  said 

County : 

1.  The  petition  of shows  that  he  is  now 

imprisoned   in   the  common  jail   of   said   county,   under   bail 

process  sued  out  by ,  which  process  is  made 

returnable  to  the term,  19.  .  .  .,  of  the  Superior  Court 

of  said  county. 

2.  That  on  account  of  his  poverty  he  is  neither  able  to  give 
bond  and  security  required  by  law,  nor  to  produce  the  property, 
and  can  show  these  facts  as  satisfactory  reasons  for  its  non- 
production,  to  wit : 


310  BAIL  IN  ACTIONS  FOE  PERSONALTY 

3.  That  before  he  ever  heard  or  knew  that 

had  or  claimed  any  title  to,  or  interest  in,  the  bull,  the  subject- 
matter  of  said  suit,  petitioner  bona  fide  sold  said  bull  to  one 

,  who  has  removed  the  same  beyond  the  reach 

of  petitioner  so  that  he  can  not  produce  him. 

4.  Petitioner  further  shows,  that  at  the  time  said  bail  pro- 
ceedings were  sued  out,  the  said  bull  was  not  in  his  possession, 

custody  or  control,  and  had  not  been  for  more  than 

days  before  that  time. 

5.  That  petitioner  has  caused  a  copy  of  this  petition  to  be 
served  upon  the  plaintiff. 

6.  Petitioner  comes  now  and  traverses  the  allegation  of  said 
affidavit,  and  prays  the  granting  of  a  rule  nisi  calling  upon  the 
plaintiff  to  show  cause,  if  any  he  has  or  can,  after  five  days 
service,  why  petitioner  should  not  be  discharged  from  custody 
on  his  own  recognizance  whereof. 

Attorney  for  Petitioner. 


AFFIDAVIT  TO  PETITION. 


Georgia, County. 

Personally  came  before  the  undersigned  attesting  officer, 
Richard  Roe,  who,  being  duly  sworn,  on  oath  says  that  the  facts 
and  things  stated  in  the  foregoing  petition  are  true. 

RICHARD  ROE. 
Sworn  to  and  subscribed  before  me,  this 

the day  of ,  19 

,  J.   P. 


ORDER  FOR-RULE  TO  SHOW  CAUSE. 


Office  of  Judge  of  Superior  Court. 

At  Chambers, Ga., ,  19 .... 

The  above  and  foregoing  petition  having  been  presented  to 

me,  it  is  ordered  that  the  same  be  heard  on  the day 

of ,  19.  .  .  .,  at  nine  o'clock,  A.  M.,  and  that 

the  plaintiff,  Richard  Roe,  show  cause  at  said  time  why  the 
prayer  of  said  petition  should  not  be  had  and  allowed.     Let 


BANKS  311 

Richard  Roe  be  served  with  a  copy  of  said  petition  and  this 
order  at  least  five  days  before  said  hearing. 

Judge  of  the  Superior  Court. 

Due  and  legal  service  of  the  within  and  foregoing  petition 
and  order  and  all  other  and  further  service  is  hereby  waived. 
This  the.  .  .  .dav  of.  .  ,  19.  . 


Attorney  for  John  Doe,  Plaintiff. 


BANKS.     §§2262-2366. 


AFFIDAVIT  OF  PROPOSED  COEPOEATOBS. 


Georgia, County. 

Before  me  personally  appeared  the  undersigned  petitioners, 
who  on  oath  depose  and  say  that  $15,000  of  the  capital  sub- 
scribed to  the ,  for  which  bank  deponents  are  now 

seeking  incorporation  by  the  Secretary  of  State,  has  actually 
been  paid  in  by  the  subscribers,  and  that  the  same  is  in  fact 
held  and  is  to  be  used  solely  for  the  business  and  purposes  of 
the  said  corporation. 


Sworn  to  and  subscribed  before  me  this 

day  of ,19 

[SEAL.]      

Ordinary  ....,...•.  County. 


APPLICATION  FOE  BANK  CHAETEE. 


Georgia, County. 

To  the  Honorable ,  Secretary  of  State, 

Atlanta,  Ga. : 

The  undersigned,  whose  names,  signed  by  each  of  them,  and 
residences,  are  hereto  attached,  bring  this  our  petition,  in  pur- 
suance of  the  Code,  and  respectfully  show: 


312  BANKS 

1st.  That  we  desire  to  form  a  corporation  for  the  purpose 
of  carrying  on  the  business  of  banking. 

2d.  The  name  and  style  of  the  proposed  corporation  shall 
be ". 

3d.  The  location  and  principal  place  of  business  shall  be 

the of ,  county  of 

and  State  of  Georgia. 

4th.  The  amount  of  capital  stock  is dollars 

($ )  divided  into shares  of each. 

5th.  The  purposes  and  nature  of  the  business  of  the  proposed 
corporation  shall  be  that  of  a  bank,  with  continuous  succession 
for  the  term  of  thirty  years,  with  the  right  of  renewal  for  a  like 
term.  To  sue  and  be  sued.  To  have  and  use  a  common  seal, 
and  at  pleasure  to  alter  the  same.  To  appoint  such  officers  and 
agents  as  the  business  of  the  corporation  requires,  prescribe 
their  duties,  fix  their  compensation,  and  remove  them  at  pleas- 
ure. To  make  such  by-laws  as  may  be  necessary  or  proper  for 
the  management  of  its  property  and  regulation  of  its  affairs. 
To  hold,  purchase,  dispose  of  and  convey  such  real  and  personal 
property  as  may  be  necessary  for  its  uses  and  business.  To 
discount  bills,  notes  or  other  evidences  of  debt;  to  receive  and 
pay  out  deposits,  with  or  without  interest ;  to  receive  on  special 
deposit  money  or  bullion  or  foreign  coins,  or  stocks  or  bonds  or 
other  securities;  to  buy  or  lend  money  upon  personal  security, 
or  upon  pledges  of  bonds,  stocks  or  negotiable  securities ;  to  take 
and  receive  security  by  mortgage,  or  otherwise,  on  property, 
real  or  personal ;  and  generally  to  do  and  perform  all  such  other 
matters  and  things  not  hereinbefore  enumerated  as  are  or  may 
be- incident  to  the  business  of  banking. 

We  herewith  enclose  the  charter  fee  of  $ ,  and 

pray  to  be  incorporated  under  the  laws  of  this  State. 

Signed: 


Petitioners. 


(NOTE:  Each  incorporator  must  sign  his  name  here  and  state  place 
of  residence.  Any  number,  not  less  than  three,  may  form  a  corpora- 
tion.) 


BANKS  313 

PUBLICATION  OF  DECLAKATION  AND  AFFIDAVIT.     §2264. 


[NOTE. — The  declaration  and  affidavit  shall  be  published  by  the  sub- 
scribers in  the  official  organ  of  the  county  in  which  it  is  proposed  to  do 
business,  once  a  week  for  four  weeks;  the  Secretary  of  State  will  fur- 
nish a  certified  copy  of  same  to  the  subscribers,  upon  application.] 


OKDINABY'S  CERTIFICATE.     §2265. 


Georgia, County. 

I, ,  Ordinary  of  said  county,  do  certify  to 

the  fact  of  the  publication  of  the  foregoing  copy  of  declaration 

and  affidavit  certified  by  lion ,  Secretary  of 

State,  and  that  the  same  has  been  published  in  the 

newspaper,  the  same  being  the  official  organ  of  said  county,  once 
a  week  for  four  weeks,  as  provided  by  law. 

Witness  my  hand  and  seal  of  office,  this day 

of ..,  19 

Ordinary  of County,  Ga. 


CERTIFICATE  OF  INCORPORATION.     §2265. 


State  of  Georgia. 
Office  of  Secretary  of  State. 
Whereas,   

and having  filed  'in  the  office  of  the 

Secretary  of  State  a  certain  declaration  in  writing  signed  by 
each  of  them,  seeking  the  formation  of  a  corporation  to  be 
known  as  (state  the  name  of  proposed  bank),  with  its  principal 

office  in to  exist  for  the  period  of  thirty  years, 

and  having  fully  complied  with  all  the  requirements  of  the  law, 

in  such  case  made  and  provided,  I ,  Secretary 

of  State,  do  hereby  certify  that  the  subscribers,  their  associates 
and  successors  are  hereby  made  and  constitute  a  body  politic 

and  corporate  under  the  name  and  style  of 

as  designated,  in  the  declaration  filed  herein,  and  that  such  cor- 
poration has  the  capacity  and  powers  conferred,  and  is  subject 
to  all  the  duties  and  liabilities  imposed  by  law,  as  well  as  clothed 
with  full  authority  by  and  under  the  name  aforesaid,  to  exercise 
all  of  the  powers  and  privileges  of  such  corporation,  as  defined 


314  BANKS 

and  set  forth  in  the  Code,  subject  to  the  provisions  of  the  Con- 
stitution of  this  State,  and  all  the  laws,  rules  and  regulations 
governing  such  corporations  of  force  at  the  date  of  this  cer- 
tificate, or  that  may  hereafter  become  of  force,  either  by  con- 
stitutional or  statute  law. 

In  witness  whereof  these  presents  have  been  signed  by  the 

Secretary  of  the  State,  at  Atlanta,  Georgia,  this day 

of ' ,19 

[SEAL.] 

Secretary  of  State. 


BANKER'S  STATEMENT  OF  CONDITION  OF  BANK.    §§2288,  2289. 


(INSTBUCTIONS:  Bankers  will  please  fill  out  the  following  form.  In 
making  out  report  fill  out  all  items  just  as  called  for,  writing  word 
none  wherever  no  amount  is  to  be  entered.  This  report  must  be  re- 
turned in  10  days.  Mail  to  State  Treasurer  and  State  Bank  B'xaminer, 
of  Georgia,  Atlanta,  Georgia.) 


BANKS 

BANK  EXAMINER'S   REPORT 

OF   THE   CONDITION   OF 

The.. Located  at 


315 


Ga. 


RESOUBCES 

LIABILITIES 

Demand  Loans, 
Time  Loans, 
Overdrafts,  See  Schedule, 
Overdrafts,  secured  by  Cotton, 
Bonds  and   Stocks  owned  by 
the  Bank, 
Banking  House, 
Furniture  and  Fixtures, 
Other  Real  Estate, 
Due  from  Banks  and  Bankers 
in  this  State, 
Due  from  Banks  and  Bankers 
in  other  States, 

Capital  Stock  Paid  In, 
Surplus  Fund, 
Undivided    Profits,    less    Cur- 
rent Expenses,  Interest  and 
Taxes  Paid, 
Due  to  Banks  and  Bankers  in 
'  this  State, 
Due  to  Banks  and  Bankers  in 
other  States, 
Due  Unpaid  Dividends, 
Individual  Deposits,  subject  to 
Check, 
Savings  Deposits, 
Demand  Certificates, 

Gold,                                   I 

Time  Certificates, 

Silver,  Nickels,  etc.,       f 

Certified  Checks, 

Cashier's  Checks, 

Clearing  House,               I 

Due  to  Clearing  House, 

Advances  on   Cotton,     I 

Notes  and  Bills  Rediscounted, 

Profit  and  Loss, 
Other  Resources, 

Bills  Payable, 
Other  Liabilities, 
Unearned  Interest, 

Total, 

Total, 

LOANS   AND   DISCOUNTS 


In   Suit, 
In  Judgment, 
Loans  past  due, 
Loans  past  due  12  months  or 
more, 


Doubtful, 

Worthless, 

Loans  short  or  long, 


Remarks: 


I  HEREBY  CERTIFY,  That  I  have  counted  Cash  and  Cash  Items  after 

the  examination  and  herewith  receipt ,  Examiner, 

for  §ame  as  per  this  statement. 

,  Cashier. 


316  BANKS 

LOANS  EXCEEDING  TEN  PER  CENT.  OF  CAPITAL  AND  SURPLUS 


NAME 


SECURITY 


AMOUNT 


OVERDRAFTS 


SECURED.  —  HOW  ? 

UNSECURED 

Standing  12  Months  or  over, 

Standing  12  Months  or  over, 

II                       Q                 H                     II             II 

Temporary, 
Officers  and  Directors, 

Temporary, 
Officers  and  Directors, 

Total, 

Total, 

REDISCOUNTS  AND  BORROWED  MONEY. 
(Including  Certificates  of  Deposit  Representing  Borrowed  Money.) 


(Where  money  is  borrowed  by  rediscounts  or  otherwise,  give  the  name 
of  the  bank  from  which  it  is  borrowed,  amount,  security,  time  and 
rate  of  interest  paid.) 

FROM   WHOM  BORROWED 

SECURITY 

AMOUNT 

REMARKS 

BANKS 


317 


LISTS  OP  BONDS  AND  STOCKS  OWNED  BY  THE  BANK 


Number  of 
Bonds  or 
Shares 

Name  of  Corporation 
Issuing  Bonds  or  Stock 

Amount 
at  which   Car- 
ried on  Books 

Estimated 
Market 
Value 

LOANS  EXCEEDING  TEN  PER  CENT.  OP  CAPITAL  TO  OFFICERS 

AND  DIRECTORS 

Are  these  loans  approved  in  writing  by  a  majority  of  the  Directors 
as  the  Law  requires? 


NAME 


SECURITY 


LIABILITIES  OF  OFFICERS  AND  DIRECTORS 
(Give  names  of  all  Officers  and  Directors  whether  indebted  to  the  Bank 

or  not) 


| 

Liability  as 

Number  of 
Shares  of 
Stock 
Owned 

Name  and 
Position 

Liability  as 
Payers 
(Firm  and 
Individual) 

Endorsers 
or 
Guarantors 
(Firm  and 

Overdraft 
(Firm  and 
Individual) 

Individual) 

President, 

Vice-Pres't, 

Cashier, 

Asst.  Cashier, 

Financial  Agent, 

Director, 

318  BANKS 

TRUST  COMPANIES.     §§2815-2821   (e). 


NOTICE  OF  INTENTION  TO  ORGANIZE.    §2816. 


To  Whom  it  May  Concern: 

Notice  is  hereby  given  of  our  intention  to  organize  a  trust 

company,  the  names  of  the  proposed  corporations  being 

and . ,  the  name  of  the 

proposed  trust  company  is  to  be ' , 

and  the  location  of  the  same  at , 

county,  State  of  Georgia. 

A  declaration  in  writing,  signed  by  each  of  the  proposed 
corporators,  will  be  filed  in  the  office  of  the  Secretary  of  State 
on  the day  of ,  19 .... 


[NOTE. — The  notice  of  intention  to  organize,  above  set  forth,  must, 
previous  to  filing  the  declaration,  be  published  at  least  once  a  week 
for  four  weeks  in  a  newspaper  of  general  circulation  published  in  the 
city  in  which  the  principal  office  of  the  proposed  corporation  will  be 
located.] 


APPLICATION  FOR  CHARTER.     §2815. 


Georgia, County. 

To  the  Honorable ,  Secretary  of  State, 

Atlanta,  Ga. : 

The  undersigned  [not  less  than  five],  whose  names,  signed  by 
each  of  them,  and  residence  are  hereto  attached,  bring  this  our 
petition,  in  pursuance  of,  and  respectfully  show: 

1st.  That  we  desire  to  form  a  corporation  for  the  purpose  of 
carrying  on  the  business  of  a  trust  company. 

2d.    The  name  and  style  of  the  proposed  corporation  shall  be 

3d.  The  location  of  the  principal  business  thereof  shall  be 

the of county  of and  State  of 

Georgia. 

4th.  The  amount  of  capital  stock  is dollars 

($ ),  divided  into shares  of 

dollars  each ;  all  of  which  shares  have  been  subscribed.  And 
that ....thousand ..dollars  (at ..least  $25,000)  of  the 


BANKS  319 

capital  stock  subscribed  has  been  actually  paid  in  by  the  sub- 
scribers and  the  same  is  in  fact  held  and  is  to  be  used  solely  for 
the  business  and  purposes  of  the  corporation. 

5th.  The  nature  of  the  proposed  corporation  shall  be  that  of 
a  trust  company,  with  continuous  succession  for  the  term  of 
thirty  years,  with  the  right  of  renewal  for  a  like  term;  to  sue 
and  be  sued ;  to  have  and  use  a  common  seal,  and  at  pleasure  to 
alter  the  same ;  to  appoint  such  officers  and  agents  as  the  business 
of  the  corporation  requires,  prescribe  their  duties,  fix  their 
compensation,  and  remove  them  at  pleasure;  to  make  such  by- 
laws as  may  be  necessary  or  proper  for  the  management  of  its 
property  and  regulation  of  its  affairs.  To  hold,  purchase, 
dispose  of  and  convey  such  real  and  personal  property  as  may 
be  necessary  for  its  uses  and  in  the  regular  conduct  of  its  busi- 
ness; to  buy  or  sell  foreign  or  domestic  exchange,  or  other 
negotiable  paper;  to  lend  money  upon  personal  security,  or 
upon  pledges  of  bonds,  stocks  or  negotiable  securities;  to  take 
and  receive  security  by  mortgage,  deed  or  otherwise,  on  prop- 
erty, real  and  personal,  and  generally  to  do  and  perform  all  such 
other  matters  and  things  not  hereinbefore  enumerated  as  are 
or  may  be  incident  to  the  business  of  a  trust  company. 

We  herewith  enclose  a  check  for  $50.00,  and  pray  to  be  incor- 
porated under  the  laws  of  this  State. 

Signed : 

whose  place  of  residence  is  the  city  of , 

county,  Georgia. 

whose  place  of  residence  is  the  city  of , 

county,  Georgia. 

\vhose  place  of  residence  is  the  city  of , 

county,  Georgia. 


whose  place  of  residence  is  the  city  of. 
county,  Georgia. 


whose  place  of  residence  is  the  city  of 

county,  Georgia. 

Petitioners. 


(NOTE:     At  least  five  persons  must  sign  the  application.) 


320  BANKS 

AFFIDAVIT  OF  SUBSCKIBEBS. 


Georgia, County. 

Personally  before  the  undersigned  came 

and being (at  least  three) 

of  the  petitioners  who  on  oath  say  that  the  sum  of 

thousand  dollars  (at  least  $25,000)  of  the  capital  stock  sub- 
scribed to  the Trust  Company,  for  which 

company  deponents  are  now  seeking  incorporation  by  the  Secre- 
tary of  State,  has  been  actually  paid  in  by  the  subscribers  and 
that  it  is  in  fact  held  and  is  to  be  used  solely  for  the  business 
and  purposes  of  the  corporation. 


Sworn  to  and  subscribed  before  me,  this 

......day  of ,  19 

(SEAL)     , 

Ordinary  of County. 


BANKS 
REPORT  OF  BANK  EXAMINER.     §§2293-2297. 


321 


President.                                                       Cashier. 
STATEMENT 

OF   THE   CONDITION    OF 
The        T^nrateH    at  

At  the  Close  of  Busin 
Date  of  Charter 

ess  19  .... 

Rpsrnn    Rnsinpss 

BESOURCES 

LIABILITIES 

• 

Demand  Loans, 
Time  Loans, 
Overdrafts,  secured, 
Overdrafts,  unsecured, 
Bonds  and   Stocks  owned  by 
the  Bank, 
Banking  House, 
Furniture  and  Fixtures, 
Other  Real  Estate, 
Due  from  Banks  and  Bankers 
in  this  State, 
Due  from  Banks  and  Bankers 
in  other  States, 
Currency,                        $  

Capital  Stock  Paid  in, 
Surplus  Fund, 
Undivided  Profits,  less  Current 
Expenses,      Interest      and 
Taxes  Paid, 
Due  to  Banks  and  Bankers  in 
this  State, 
Due  to  Banks  and  Bankers  in 
other  States, 
Due  Unpaid  Dividends, 
Individual    Deposits,    subject 
to  Check, 
Savings  Deposits, 
Demand  Certificates, 
Time  Certificates, 
Certified  Checks, 
Cashier's  Checks, 
Due  to  Clearing  House, 
Notes  and  Bills  Rediscounted, 
Bills  Payable,  including  Time 
Certificates        representing 
Borrowed  Money, 
Other  Liabilities  (Itemized) 

Gold,                                $  "V 

Silver,  Nickels,  etc,     $  / 

Cash  Items,                    $  V 

Clearing  House,             $  [ 

Advances  on  Cotton,    $  \ 

Profit  and  Loss,                         ) 
Other  Resources    (Itemized) 

Total, 

Total, 

LOANS  AND  DISCOUNTS 

In  Suit, 
In  Judgment, 

TOTAL, 

Doubtful, 
Worthless, 

TOTAL, 

STATE  OF  GEORGIA, 
.  .  COUNTY 

President 

T.  .  .                               .  -Pnshfpp  nf  the  nl 

Jove 
the 
the 
this 
sent 
ters 
my 
ther 
tade 
con- 
ank, 
1  or 
law. 

named  bank,  do  solemnly  swear,  that 
above   Statement  Is   true,   and   that 
Schedules    on    the    other    pages    of 
Statement  fully  and  correctly  repre 
the    true    state    of    the    several    mal 
contained    therein,    to    the    best    of 
knowledge    and    belief    and    do    fur 
swear  that   since   the   last   return   n 
to  the  State  Bank  Examiner  of  the 
ditlon    of    the    Bank,    that    the    B 
through  Its  officers,  has  not  vlolate< 
evaded   any   obligation   Imposed   by 

Sworn  to  and  subscribed  be- 
fore me  this  day  of 

,  19.. 

We,     the     undersigned,     Directors 
above   Bank,   certify  to  the   genuine 
of  the  signatures  of  the  officers. 
Dlrei 

of 

DCSS 

:tor. 
?tor. 

[Seal] 

.  .Dire 

322 


BANKS 


Schedule  A. 

LIABILITIES  OF  OFFICERS  AND   DIRECTORS. 


Number  of 

Shares  of 

Stock 

Owned 


Name  and 
Position 


President. 
Vice-Pres. 

Cashier. 
Asst.  Cashier. 

Director. 


Liability  as 

Payers 
(Firm  and 
Individual) 


Liability  as 
Endorsers 

or 

Guarantors 
(Firm  and 
Individual) 


Overdraft 
(Firm  and 
Individual) 


Schedule  B. 

LOANS  EXCEEDING  10%  OF  CAPITAL  TO  OFFICERS  AND 

DIRECTORS. 
List  Individual  and  Firm  Loans  Separately. 


NAME 


SECUBITY 


AMOUNT 


Loans    to   Officers    and 
Directors  unsecured: 


BANKS 


323 


Schedule  C. 

LOANS  EXCEEDING  TEN  PER  CENT.  OF  CAPITAL  AND  SURPLUS. 


NAME 


SECURITY 


AMOUNT 


Schedule  D.                              OVERDRAFTS. 

SECURED 

UNSECURED 

Standing  12  Months,  or  over, 
Standing     6  Months,  or  over, 
Standing    3  Months,  or  over, 
Temporary, 
Officers  and  Directors, 
How  Secured: 

Standing  12 
Standing    6 
Standing    3 
Temporary, 
Officers  and 

Months,  or  over, 
Months,  or  over, 
Months,  or  over, 

Directors, 

TOTAL, 

TOTAX, 

Schedule  E. 

LIST  OF  BONDS  AND  STOCKS  OWNED  BY  THE  BANK. 
Be  explicit  in  stating  whether  U.  S.,  State,  County,  Municipal,  R.  R., 
or  Bonds  of  other  Public  Service  Corporations,  or  other  Bonds,  and 
also  if  Stocks  of  any  Corporation  are  held  and  name  of  Corporation. 


Number  of 
Bonds   or 
Shares 

Name  of  Corporation 
Issuing  Bonds  or  Stock 

Amount  at 
Which  Carried 
on  Books 

Estimated 
Market  Value 

Schedule  F. 


DUE  BY  BANKS  AND  BANKERS. 


(Verify  all  balances,  stating  all  discrepancies.  State  whether  bank 
receives  interest  on  balances,  and  give  rate,  and  the  name  of  bank 
or  banks  paying  it.)  State  whether  Correspondent  Banks  or  Collec- 
tion Banks  only. 


NAME   OF   BANK 

LOCATION 

AMOUNT 

Rate 
Per  Ct. 

REMARKS 

• 

324  BANKS 

Schedule  G.  DUB  TO  BANKS  AND  BANKERS. 

(Verify  all  balances,  stating  all  discrepancies.  State  whether  bank 
pays  interest  on  balances,  and  if  so,  what  rate?  To  whom  paid? 
Are  amounts  due  on  open  accounts,  on  demand,  or  time  certificates 
of  deposit?  Are  they  secured  by  collaterals,  or  not?) 

State  whether  Correspondent  Banks  or  Collection  Banks  only. 


NAME  OF  BANK 

LOCATION 

AMOUNT 

REMARKS 

Schedule  H. 


RE-DISCOUNTS  AND  BORROWED  MONEY. 


(Where  money  is  borrowed  by  re-discounts  or  otherwise,  give  the  name 
of  bank  from  whom  it  is  borrowed,  amount,  security,  time  and  rate 
of  interest  paid.  State  whether  minutes  show  that  Directors  author- 
ized the  transactions.) 


FROM  WHOM  BORROWED 

SECURITY 

AMOUNT 

Rate 
Per  Cent. 

REMARKS 

Schedule  I.      BANKING  HOUSE  AND  OTHER  REAL  ESTATE. 


LOCATION 

Amount  at 
which  Carried 
on  Books 

Estimated 
Value 

Was  It  Taken 
for   Debt,   or 
Not? 

Schedule  J. 


CAPITAL  STOCK. 


Was  Capital  Stock  paid  in  Cash? 

Are  shares  paid  in  full? 

Have  any  certificates  been  issued  where  stock  has  not  been  paid  in  full? 

Were  Shareholders'  notes  taken  in  payment  of  Capital  Stock,  or  increase 

of  Capital? 

State  whether  notes  are  still  in  Bills  Receivable,  renewed,  or  unpaid? 
Has  Stock  Certificate  Book  been  verified? 
Has  Stock  Ledger  been  verified? 

Does  the  Bank  hold  any  of  its  own  shares  as  collateral?  How  many? 
Does  it  own  any  of  its  shares?  How  obtained  and  for  what  purpose? 
Have  all  surrendered  certificates  been  properly  cancelled? 


BANKS  325 

Schedule  K.  SALARIES  AND  BONDS. 


Salary  of  President, 

$ 

Bond? 

Custodian? 

Salary  of  Vice-Pres., 

$ 

Bond? 

Custodian? 

Salary  of  Cashier, 

$ 

Bond? 

Custodian? 

Salary  of  Asst.    Cashier, 

$ 

Bond? 

Custodian? 

Salary  of  Teller, 

$ 

Bond? 

Custodian? 

Salary  of  Bookkeeper, 

$ 

Bond? 

Custodian? 

Salary  of  Financial  Agt., 

$ 

Burglary   Insurance, 

$ 

Fire  Insurance, 

$ 

N 

Schedule  L.          MEETINGS  OF  DIRECTORS  AND  SHAREHOLDERS. 

How  often  does  the  Finance  Committee  meet? 

How  often  do  the  Directors  meet? 

How  often  do  the  Stockholders  meet? 

Loans  made  by  whom? 

Are  excessive  loans  to  officers  approved  in  accordance  with  the  law? 

Do  you  compensate  Directors  for  attendance  upon  meetings? 

Are  accurate  minutes  kept  of  all  meetings? 

Has  the  Bank  been  audited  as  the  law  requires? 

Does  audit  appear  in  detail  on  Minute  Book? 

Has  copy  been  sent  to  State  Bank  Examiner? 

Did  any  Directors  aid  in  the  examination? 

Has  list  of  Stockholders,  etc.,  been  sent  to  State  Bank  Examiner? 

Is  Capital  Stock  Impaired?    How  much? 

Has  the  Bank  legal  reserve  of  25%? 

Answers  to  questions  given  by? 


Schedule  M.  CASH  AND  CASH  ITEMS. 

(Briefly  describe   these   items  and  state  for  what  purpose  they  are 
carried.) 

$  Check  of  President. 

Check  of  Vice-President. 
Check  of  Cashier. 
Check  of  Asst.  Cashier. 
Checks  of  Depositors. 
Checks  on  other  Banks. 

Cash  long  or  short.  $ 

Overs  or  shorts  carried  on  Individual  or  Gen'l  Ledger. 


326                                           BANKS 
Schedule  N.                   DISPOSITION  OF  EARNINGS. 

Date  

Gross  earnings  for  six  or  twelve  months, 

DISPOSITION    OF    PROFITS 

Expense, 

Interest  Paid, 

Dividend, 

Surplus, 

Bad  debts  charged  off, 

Undivided  profits, 

Decrease  in  values, 

Profit  and  loss, 

Schedule  O. 


INDIVIDUAL,  DEPOSITS. 


(Give  information  as  to  amount  of  interest  paid  on  balances,  time 
certificates,  etc.  State  whether  certificate  book  is  properly  kept. 
State  whether  certificates  are  issued  for  the  purpose  of  borrowing 
money,  giving  list  with  amount,  time,  interest,  and  how  secured. 
Report  on  all  discrepancies  under  this  head.) 


Interest  Paid  on  Balances,  $ 

Individual  Ledger,  Short  or  Long,  $ 
How  often  are  Pass  Books  Balanced? 

Time  Certificates  of  Deposit,  Short  or  Long,  $ 
Demand  Certificates  of  Deposit,  Short  or  Long,      $ 

Certified  Checks,  Short  or  Long,  $ 

Cashier's  Checks,  Short  or  Long,  $ 

Amount  Due  the  State,  if  a  Depository,  $ 

Savings  Ledger,  Short  or  Long,  $ 
When  is  Interest  Credited? 


Rate% 


Rate% 
Rate% 


Rate% 


Schedule  P. 


BANKS 
STATEMENT  OF  CASH. 


327 


DR. 

Due  Demand  Deposits: 

Subject  to  Check,  $ 

Demand  Certificates,  $ 

Unpaid  Dividend,  $ 

Certified  Check,  $ 

Cashiers  Check,  $ 

Due  Clearing  House,  $ 

Total,  $ . 

Due  Banks  and  Bankers  in  this  State,  $. 

Due  Banks  and  Bankers  not  in  this  State,  $. 

Total  $. 

CR. 

Cash  on  Hand,  $ 

Amount  of  Bonds  and  Stocks,  present  value,      $ 

Due  from  Banks  and  Bankers  in  this  State,        $ 

Due  from  Banks  and  Bankers  not  in  this  Stated 

Total  $. 
Twenty-five  (25)  per  cent,  of  Demand  Deposits  $. 


REMARKS 


328     BILLS  AND  NOTES — BILLS  OF  SALE  OF  PERSONALTY 

Certificate  made  and  filed  for  purpose  of  organizing  banking  associa- 
tion is  evidence  of  truth  of  facts  it  recites,  and  evidence  that 
company  was  duly  organized;  from  time  of  filing,  association 
becomes  a  corporation  or  quasi  corporation;  it  is  revocable  for 
fraud.  16  App.  820,  821  (8)  (86  S.  E.  644). 

Chartered  bank.  Company  incorporated  mainly  for  the  purpose  of 
exercising,  and  vested  with,  the  powers  usually  conferred  upon 
companies  authorized  to  act  as  guardian,  receiver,  or  other  trustee, 
is  not  a  "chartered  bank,"  merely  because  it  may  be  empowered 
to  exercise,  as  a  mere  incident  to  the  main  object  of  incorporation, 
some  of  the  functions  of  a  bank.  13  App.  314  (2)  (79  S.  E.  170). 
Judicial  cognizance  taken  here  that  certain  institution  was  a 
"chartered  bank."  15  App.  520,  521  (5)  (83  S.  E.  891). 

Contracts.    Charters  of  banks  are  contracts.     19/325. 


BILLS  AND  NOTES. 

(See   Promissory   Notes   and   Bills   of  Exchange,   post,   pages 

710-724.) 


BILLS  OF  SALE  OF  PERSONALTY. 

§§3298,  3299,  3306-3308. 


FOKM  OF  BILL  OF  SALE. 


Georgia, County. 

This  agreement  witnesses  that for  and  in 

consideration  of  the  sum  of dollars  to  him  in  hand 

paid  by ,  the  receipt  whereof  is  hereby  acknowl- 
edged, has  bargained  and  sold,  and  does  hereby  bargain,  sell 

and  deliver  unto  the  said (Here  describe  the 

property).  . 

The  said does  hereby  warrant  the  title  to 

said 

In  witness  whereof  the  said has  hereunto  set 

his  hand  and  seal,  this day  of ,  19 .... 

.  [SEAL.! 


J.  P. 


BILL  OF  SALE  OF  PERSONAL  PROPERTY  TO  SECURE  DEBT. 

§3306. 


Whereas,  I, ,  am  indebted  to 

in  the  sum  of dollars,  evidenced  by  my  promissory 


BILLS  OF  SALE  OF  PERSONALTY  329 

note  dated  the day  of ,  19.  .  .  .,  and  payable 

the day  of ,  19.  .  .  . ,  with  interest  thereon 

from at  the  rate  of per  cent,  per  annum. 

Now,  therefore,  in  order  to  secure  the  payment  of  said  note, 

1  hereby  bargain,  sell,  transfer  and  deliver*  to  the  said 

,  his  administrators,  executors  and  assigns,  the 

following  personal  property,  to  wit:  (describe  the  property 
sold). 

This day  of ,  19 


J.  P. 


[*NOTE. — If  possession  is  to  be  retained  by  the  maker  of  the  bill  of 
sale  the  word  "deliver"  in  the  above  form  should  be  stricken  and  the 
word  "convey"  inserted;  in  which  case  the  following  words  should  be 

added  to  the  form:     "The  delivery  of  said  property  to  said 

is  hereby  dispensed  with  and  the  same  is  to  remain  in  my  possession, 
and  I  am  to  have  the  use  and  possession  of  the  same  until  default  on 
my  part  to  pay  said  note  or  interest  when  due.  My  possession  of  said 
property,  until  said  note  is  paid,  is  to  be  that  of  a  bailee  for  hire,  the 
holder  of  said  note  to  be  paid  as  hirer  of  said  property,  and  upon  default 

as  aforesaid  I  bind  myself  to  deliver  said  property  to  said 

as  such  bailee."] 


BOXD  TO  RECOXVEY  PERSONALTY  HELD  AS  SURETY  UNDER 
BILL  OF  SALE. 


Georgia, County. 

I  hereby  acknowledge  myself,  my  heirs,  executors  and  admin- 
istrators held  and  firmly  bound  unto in  the  sum 

of dollars  (double  the  value  of  the  property), 

subject  to  the  following  conditions: 

The  condition  of  the  above  obligation  is  as  follows :  Whereas, 

the  said  obligee  heretofore  on  the day  of ,  19.  .  ., 

made  and  delivered  to  the  obligor  a  certain  bill  of  sale  conveying 
thereby  the  title  to  certain  personal  property  described  as  fol- 
lows: (Here  put  in  the  description  of  the  property),  to  secure 

the  payment  of  a  certain  promissory  note,  dated  the day 

of ,  19 .  .  .  . ,  for  the  sum  of  $ principal, 

with  interest  thereon  at  the  rate  of per  cent,  per  annum, 

together  with  the  condition  for  payment  of  attorney's  fees  in 
the  event  said  note  is  collected  by  suit  or  placed  in  the  hands 
of  an  attorney  for  collection,  the  said  note  being  in:idc  by  the 


330  BILLS  OF  SALE  OF  PERSONALTY 

obligee  to  the  obligor,  and  due  on  the day  of , 

19 

Now  if  the  said  obligee  shall  well  and  truly  pay  said  note  at 
the  time  it  becomes  due,  according  to  the  tenor  and  effect 
thereof,  then  this  bond  to  be  void,  otherwise  of  force  and  effect. 

This  the day  of ,  19 


FOB  THE  PURCHASE  MONEY  WITH  TITLE  RESERVED. 


$100.00  ,  GJL, ,19 

Six  months  after  date,  I  promise  to  pay  to  the  order  of  John 
Doe,  the  sum  of  one  hundred  ($100.00)  dollars,  with  interest 
from  date  at  eight  per  cent,  per  annum,  together  with  all  costs 
of  collection,  including  ten  per  cent,  attorney's  fees  in  the  event 
said  note  is  collected  by  suit,  or  placed  in  the  hands  of  an  attor- 
ney for  collection. 

This  note  is  given  for  the  purchase  money  of  one  certain  bay 
horse  about  nine  years  old  and  weighing  about  one  thousand 
pounds,  named  "Bob,"  and,  to  secure  the  payment  of  this  note, 
together  with  interest,  costs  and  attorney's  fees,  the  payee  hereof 
reserves  as  security  therefor  the  title  to  said  horse,  and  the  title 
thereto  is  to  remain  in  the  said  payee  until  this  note  is  fully 
paid  and  discharged. 

It  is  further  understood  and  agreed  that  in  the  event  said 
horse  should  die  or  in  any  way  be  damaged  or  injured  previous 
to  the  payment  of  this  note,  that  the  maker  thereof  and  pur- 
chaser of  said  horse  shall  lose  the  same,  and  the  said  loss  shall 
not  be  charged  to  the  payee  of  this  note  nor  shall  in  any  way 
lessen  or  affect  his  liability  thereon.  And  I,  the  maker  of  this 
note,  and  each  security  and  endorser  thereof,  for  himself  and 
family,  hereby  waives  and  renounces  all  right  that  he  may  have 
to  homestead  or  exemption  under  the  laws  of  Georgia,  or  to 
plead  the  same  against  this  note  or  any  renewal  thereof. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed 
my  seal,  the  day  and  year  first  above  written. 

(L.  S.) 

(L.  S.) 

Signed,  sealed  and  delivered  in  the  pres- 
ence of : 

J.'P.' 


BONDS — BONDS  FOB  TITLE  331 

[NOTE. — In  order  for  the  reservation  of  title  to  be  valid,  as  against 
a  third  person,  it  must  be  in  writing,  and  executed  and  attested  in  the 
same  manner  as  mortgages  on  personal  property.  §3318.  It  must  be 
recorded  within  thirty  days  of  its  date,  and  is  otherwise  governed  by 
the  laws  relating  to  the  registration  of  mortgages.  §3319.] 


BONDS. 


[NOTE:     Forms  of  official  bonds,  and  such  bonds  as  are  required  in 
legal  proceedings,  will  be  found  under  the  specific  topics.] 


BONDS  FOR  TITLE.     §§3306,  4213-4215. 


FORM  OF  BOND. — I. 


Georgia, County. 

Know  all  men  by  these  presents,  That ,  of  the 

county  and  State  aforesaid,  part.  .  of  the  first  part , 

held  and  firmly  bound  unto ,  part .  .  of  the  second 

part, heirs  and  assigns,  in  the  penal  sum  of 

dollars,  for  the  payment  of  which  well  and  truly  to  be  made, 
the  said  part.  .  of  the  first  part  hereby  bind heirs,  execu- 
tors and  administrators,  jointly,  severally  and  firmly  by  these 

presents.  Signed  with hand.  .,  and  sealed  with.  ..... 

seal .  . ,  this ......  day  of ,  19 .... 

The  condition  of  the  foregoing  obligation  is,  That  whereas 
the  said  part.  .  of  the  first  part  ha.  .  .  this  day  agreed  to  sell 
to  the  said  part.  .  of  the  second  part  a  certain  tract  or  parcel 
of  land  situated,  lying  and  being  in  the _  . .  .• 

> 

for  the  consideration  of  the  sum  of dollars,  said 

sum  to  be  paid  as  follows : 

dollars,  this  day  paid,  the  receipt  whereof  is 

hereby  acknowledged,  and dollars  payable  on  the .... 

day  of ,  19 .  .  .  . ,  and dollars  payable  on 

the day  of ,  19 .  .  .  . ,  for  which  deferred 

payments  the  said  part .  .  of  the  second  part  ha .  .  given 

promissory  notes,  dated  this  day,  bearing  interest  at  the  rate 
of per  cent,  per  annum  from  this  date  until  paid,  and 


332  BONDS  FOR  TITLE 

stipulating  that  said  part.  .  of  the  second  part  shall  pay  attor- 
ney's fees  and  cost  of  suit,  as  therein  provided,  said  notes  to 
become  due  as  above  stated. 

Now  if  the  said  part.  .  of  the  second  part  shall  well  and  truly 
pay  the  said  several  sums  of  money  at  the  times  specified,  then 

the  said  part .  .  of  the  first  part bound  to  make  and 

execute  to  the  part .  .   of  the  second  part  or assigns  a 

.good  and  sufficient  title  to  the  above  described  lot  or  parcel  of 
land ;  but  on.  failure  of  the  said  part .  .  of  the  second  part  to 
pay  the  said  sums  of  money,  or  either  of  them,  at  the  times 
specified,  then  the  said  obligation  to  be  void  and  of  no  effect. 
In  witness  whereof,  the  said  part .  .   of  the  first  part  ha .  . 

hereunto  set hand.,    and   affixed seal..,   the   day 

and  year  above  named. 

[SEAL.! 

Signed,  sealed  and  delivered  in  the  pres- 
ence of: 


J.  P. 


FORM  OF  BOND. — II. 


Georgia, County. 

Know  all  men  by  these  presents,  That  I,  John  Doe,  of  the 
county  and  state  above  named  and  stated,  am  held  and  firmly 
bound  unto  Richard  Roe,  his  heirs  and  assigns,  in  the  just  and 
full  sum  of  one  thousand  ($1,000.00)  dollars  subject  to  the 
conditions  hereinafter  stated.  Signed  with  my  hand  and  sealed 
with  my  seal,  this  the day  of . . ,  19.  ... 

The  condition  of  the  above  obligation  is  as  follows :  Whereas, 
the  said  John  Doe  has  this  day  sold  to  Richard  Roe,  lot  of  land, 

Number ,  in  the district  and 

section  of county,  for  and  at  the  purchase  price 

of dollars,  of  which  amount  the  said  Richard 

Roe  has  this  day  paid dollars,  leaving  as 

balance  of  purchase  price  the  sum  of dollars, 

for  which  the  said  Richard  Roe  has  executed  his  four  certain 
promissory  notes,  bearing  even  date,  and  containing  a  stipulation 
to  pay  ten  (10)  per  cent,  attorney's  fees  and  costs  of  collection 
in  the  event  said  note  is  placed  in  the  hands  of  an  attorney  for 
collection  or  collected  by  suit,  one  of  said  notes  to  be  due  twelve 


BONDS  FOR  TITLE 

months  from  date,  and  another  one  due  two  years  from  this 
date,  another  one  due  three  years  from  this  date,  and  another 
one  due  four  years  from  this  date ;  said  notes  being  a  series. 

Now,  it  is  expressly  agreed  by  the  obligee  in  this  bond,  and 
so  provided  in  the  notes,  that  if  any  one  of  the  said  notes  should 
become  due  and  remain  unpaid  for  as  much  as  sixty  days,  then 
each  and  all  of  the  remaining  notes  shall  become  due  and  pay- 
able at  the  option  of  the  obligee  in  this  bond,  and  if  the  said 
Richard  Roe  shall  pay  to  the  obligor  in  this  bond,  or  the  holder 
of  said  notes,  the  several  sums  provided  therein,  according  to 
their  tenor  and  effect  at  the  time  specified  therein,  then  the 
obligor  herein  binds  himself,  his  heirs  and  assigns,  to  make  to 
the  said  Richard  Roe  good  and  sufficient  titles  with  deed  of 

warranty  in  and  to  said  lot  of  land,  Number ,  in 

the district  and section  of county, 

containing  forty  (40)  acres,  more  or  less,  which  if  the  said 
obligor  shall  do,  then  this  bond  to  be  void,  otherwise  of  full 
force  and  effect. 

In  witnesseth  whereof,  the  said  party  of  the  first  part  has 

hereunto  set  his  hand  and  affixed  his  seal,  this  the day 

of ,  19 

IL.  S.1 

Signed,  sealed  and  delivered  in  the  pres- 
ence of 


J.  P. 


ASSIGNMENT  OF  BOND  FOE  TITLES. 


Georgia, County. 

For  value  received,  I  hereby  transfer  and  assign  to 

the  within  bond  for  titles,  together  with  all  and 

singular  my  rights  and  interest  in  and  by  virtue  of  the  same. 

This day  of ,  19 


334  BRIDGES 

SALE  OF  LAND  FOR  PURCHASE-MONEY.     §§3330,  6037-6039. 


Land  held  under  bond  for  titles  is  not  subject  to  execution  sale  as  the 
property  of  the  holder  of  the  bond,  until  he  is  vested  with  the  title. 
101  Ga.  258.  Lien  of  transferee  of  purchase-money  note  not  enure 
to  his  benefit,  he  taking  the  note  without  endorsement  or  guaranty 
of  payment  by  the  payee,  and  without  any  conveyance  of  title  to 
the  land  to  him.  105  Ga.  377.  Measure  of  damages  for  breach 
of  bond.  §4401. 


PETITION  FOR  ORDER  FOR  ADMINISTRATOR  TO  MAKE  TITLES 
ON  BOND  OF  INTESTATE.     §§4016-4020. 

(See  ante,  pp.  202-207.) 


BEIDGES.     §§744-781. 


BRIDGE  CONTRACTOR'S  BOND.       §§389-389  (b),  748-750. 


Georgia, County. 

We, ,  as  principal,  and , 

as  security,  both  of  said  county  and  State,  acknowledge  our- 
selves held  and  bound  unto ,  the  ordinary  of 

said  county,  and  his  successors  in  office,  in  the  sum  of 

dollars,  subject  to  the  following  conditions: 

The  condition  of  the  above  obligation  is  as  follows:     That 
whereas,  at  the  letting  out  of  the  building  of  a  bridge,  across 

,  near  the  town  of ,  in  said  county, 

said became  the  lowest  bidder,  at  and  for  the 

sum  of dollars;  now,  should  the  said 

faithfully,  well  and  truly  perform  his  said  contract  in  building 
said  bridge,  and  shall  also  keep  the  same  in  good  repair  for 

years  (according  to  -the  stipulations  entered  into  and 

filed  in  the  office  of  said  ordinary)  from  the  date  of  this  obliga- 
tion, then  the  same  to  be  void,  otherwise  of  force.     This 

day  of ,  19 

Principal  [L.  S.] 

Security    [L.  S.] 

Executed  in  the  presence  of  and  approved 
by  me : 

Ordinary. 


CERTIORARI  335 

CERTIORAKI.     §§5180-5205. 


PETITION  FOR  CERTIORARI.     §5183. 


To  the  Superior  Court  of  said  County: 

The  petition  of .shows  that  at  the 

term  of  the court  of  said  county, 

district,  G.  M.,  there  carne  on  to  be  tried  before , 

then  and  there  presiding,  the  case  of vs , 

being  an  action  upon 

The  (verdict  or  judgment)  was  adverse  to  your  petitioner, 
and  he  is  dissatisfied  therewith;  and  now,  within  thirty  days 
from  the  final  determination  of  said  cause,  petitioner  having 
complied  with  the  requirements  of  law  in  such  cases,  presents 
this  petition  for  writ  of  certiorari,  in  which  petition  he  now 
here  proceeds  plainly,  fully  and  distinctly  to  set  forth  the  nature 
of  said  cause ;  what  occurred  on  said  trial ;  and  the  errors  com- 
plained of. 

1.  At  the  appearance  term  of  said  court  defendant  filed  the 

pleas  of and  of ,  copies  of 

which  pleas  are  hereto  attached,  and  marked  "Exhibit  A"  and 
'•'Exhibit  B."  respectively. 

2.  The  case  being  called  for  trial,  both  parties  announced 
ready,  whereupon  the  defendant  moved  to  dismiss  said  case  upon 

the  ground  that , 

The  Court  overruled  the  said  motion  and  the  cause  proceeded 
to  trial. 

3.  Plaintiff  offered  in  evidence ,  to  the 

introduction  of  which  the  defendant  objected,  on  the  ground 

that The  objection  was  overruled  and  said 

received  in  evidence,  whereupon  the  plaintiff 

closed. 

Defendant  being  sworn   as   a  witness   testified,   as  follows: 

Plaintiff  being  sworn  as  a  witness  testified,  as  follows:... 

4.  There  being  no  further  evidence,  the  court  entered  up 
judgment  (or,  the  jury  found  a  verdict)   in  favor  of  plaintiff 

against  defendant  for  $ ,  besides  interest  and  cost 

of  suit. 


336  CERTIORARI 

Petitioner  avers  that  said  court  erred  in 

and  also  in and  in  entering  up  judgment 

as  aforesaid,  all  of  which  rulings  and  findings  of  said  court  the 
petitioner  assigns  as  error. 

Wherefore,  in  order  that  said  errors  may  be  reviewed  and 
corrected,  petitioner  prays  that  the  State's  writ  of  certiorari 

may  issue,  directed  to ,  in  terms  of  the  law, 

requiring  him  to  certify  and  send  up  all  the  proceedings  in  said 

case  to  the ^.  . .  .term,  19.  .  .  .,  of  the  Superior  Court 

of  said  county,  that  such  judgment  may  he  rendered  therein  as 
may  seem  in  accordance  with  law.  And  your  petitioner  will 
ever  pray. 

Petitioner's  Attorney. 


Application  for  writ  must  be  within  thirty  days  after  final  determina- 
tion of  the  case;  returnable  to  next  Superior  Court,  if  twenty  days 
after;  otherwise  to  next  succeeding  term,  §5188;  if  thus  "applied 
for"  in  time  and  sanction  obtained,  the  petition  may  be  filed  at  any 
time  within  three  months  from  date  of  judgment.  §4365;  143  G'a. 
572  (85  S.  E.  760).  Application  should  show  on  its  face  that  it  was 
presented  in  time.  113  Ga.  114  (38  S.  E.  304). 


AFFIDAVIT.    §5184. 


Georgia, County. 

I ,  do  solemnly  swear  that  the  petition  for 

certiorari  is  not  filed  in  the  case  for  the  purpose  of  delay  only, 
and  I  verily  believe  I  have  good  cause  for  certiorari ;  and  that 
the  facts  stated  in  the  foregoing  petition,  so  far  as  they  come 
within  my  own  knowledge,  are  true,  and  so  far  as  they  are 
derived  from  the  knowledge  of  others,  I  believe  them  to  be  true. 


Sworn  to  and  subscribed  before  me,  this 
day  of ..,  19 


BOND.    §5185. 


Georgia, County. 

In  the  case  of vs , 

in  the  justice  court  of  said  county, District,  G.  M., 


CKETIOKAKI  337 

said ,  being  dissatisfied  with  the 

rendered  therein,  and  desiring  to.certiorari  said  case,  brings.  .  . 

and  tenders  him  as  security ;  and  thereupon 

the  said ,  principal,  and  said , 

security,  acknowledge  themselves  jointly  and  severally  bound 

to  said ,  heirs,  executors,  administrators  and 

assigns,  for  the  eventual  condemnation  money  and  all  future 
costs  in  said  case,  for  the  payment  of  which  they  bind  them- 
selves, their  heirs,  executors  and  administrators  firmly  by  these 
presents. 

Witness  their  hands  and  seals,  this day  of 

,19.... 

Principal  [L.  S.] 

Security    [L.  S.] 

Executed  in  the  presence  of  and  approved 

by  me,  this day  of ,  19 .... 

,J.P. 


Approval  of  bond  must  be  by  officer  whose  decision  is  to  be  reviewed. 

13  App.  5,  7  (78  S.  E.  684).    Approval  not  shown  by  certificate  of 

magistrate  that  petitioner  "has  given  bond  as  required  by  law." 

16  App.  571  (85  S.  E,  766);  17  App.  366  (86  S.  E.  945). 
Attestation  of  bond  may  be  by  any  attesting  officer.     13  App.  5,  7  (78 

S.  E.  684). 
"Money"  omitted  after  word  "condemnation"  not  make  bond  void.     14 

App.  29    (80  S.  E.  25). 
Personal   appearance,   bond   given   by   one   convicted   in   recorder's   or 

mayor's  court  of  violation  of  ordinance  must  be  conditioned  for. 

18  App.  729  (90  S.  E.  372).     See  Park's  Ann.  Code,  1914,  §5191  (a). 
Petition  reciting  that  petitioner  complied  with  requirements  of  the  law 

not  sufficient  to  show  that  bond  was  filed.     17  App.  345   (86  S.  E. 

823).    Amendments  not  allowable.    15  App.  618,  619  (83  S.  E'.  1102)  ; 

18  App.  453   (89  S.  E.  535). 


CEBTIFICATE.     §5185. 


Georgia, County. 

I, ,  the  magistrate  who  presided  in  the 

case  to  which  the  foregoing  petition   and  bond  refer,  hereby 
certify  that  all  costs  which  have  accnied  on  the  trial  of  said 

case  have  been  paid  by  said ,  the  petitioner 

for  certiorari,  and  that  he  has  given  bond  and  security  as  re- 
quired by  law. 

,J.P. 


338  CERTIORARI 

AFFIDAVIT  IN  FORMA  PAUPERIS.     §5187. 


Georgia, County. 

Personally  came  before  me ,  who,  on  oath, 

says  that  the  foregoing  petition  for  certiorari  is  not  filed  in  this 
case  for  the  purpose  of  delay  only;  that  he  is  advised  and 
believes  he  has  good  cause  for  certioraring  the  proceedings  to 
the  Superior  Court,  and  that,  owing  to  his  poverty,  he  is  unable 
to  pay  the  cost  or  give  security,  as  required  by  law,  and  that 
the  facts  stated  in  the  foregoing  petition,  so  far  as  they  come 
within  his  own  knowledge,  are  true,  and,  so  far  as  derived  from 
the  knowledge  of  others,  he  believes  them  to  be  true. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  19 


"And"  instead  of  "or"  used,  affidavit  is  invalid.     3  App.  437   (60  S.  E. 
202);  14  App.  721  (82  S.  E.  307);  18  App.  453  (89  S.  E.  535). 


SANCTION  OF  WRIT.    §5188. 


At  Chambers,   Superior  Court, 

,Ga., day  of ,19 

The  foregoing  petition  for  writ  of  certiorari  being  presented, 
the  same  is,  upon  consideration  thereof,  sanctioned:  Let  the 
writ  of  certiorari  issue  as  prayed. 

This day  of ,  19 


WRIT  OF  CERTIORARI.     §5188. 


Superior  Court  of County. 

Georgia, County. 

•••: ...,19.... 

To ,  (Notary  Public  and  ex-officio  Justice  of 

the  Peace)  in  and  for  the Dist.,  Georgia  Militia: 

Whereas,    alleges,  by  his  petition  for 


CERTIORARI  339 

certiorari,  that  at  the term  of  your  court,  19.  .  .  ., 

judgment  was  rendered  against  him  in  favor  of 

vs for  the  sum  of dollars ;  with 

which  judgment  your  petitioner  is  dissatisfied. 

And  whereas,  said ha.  .  .  complied  with  the 

requirements  of  the  law  in  cases  of  application  for  certiorari. 

Now,  therefore,  you  are  hereby  notified  and  required  to 
certify  and  send  up  to  the  Superior  Court,  to  be  held  in  and  for 

said  county,  on  the  first  Monday  in next,  under 

your  hand  and  seal,  all  the  facts  and  proceedings  in  this  case, 
in  your  court  aforesaid. 

Witness,  the  Honorable ,  judge  of  said  court. 

Clerk  Superior  Court, County,  Ga. 


SERVICE.     §5189. 


Due  and  legal  notice  of  the  sanction  of  the  writ  of  certiorari 
in  the  within  and  foregoing  case,  and  of  the  time  and  place  of 
hearing,  acknowledged :  All  other  or  further  notice  and  service 
waived. 

This day  of ,  19 

Attorney  for  Defendant  in  Certiorari. 


NOTICE  OF  SANCTION.     §5190. 


Georgia, County. 

To ,  or  his  attorney: 

You  are  hereby  notified  that  in  the  case  of . 

vs ,  in  (the  justice  court  of county, 

district,  G.  M.),  the  same  being  an  action  upon 

,  in  which  judgment  was  rendered  for  the 

on  the day  of ,   19 .  .  .  . , 

the  said has  filed  a  petition  for  the  writ  of 

certiorari,  and  that  the  same  has  been  sanctioned  by  the  pre- 
siding judge  of  the  Superior  Court  of  said  county,  and  that  the 


'340  CERTIORARI 

"time  and  place  of  the  hearing  of  said  case  will  be  at  the  next 
term  of  the  Superior  Court,  at  the  court  house  in  said  county. 

Attorney  for  Plaintiff  in  Certiorari. 


Notice  should  be  given  at  least  ten  days  before  beginning  of  term  of 
court  to  which  returnable.    13  App.  599  (79  S.  E.  586). 


AFFIDAVIT  AS  TO  SERVICE  OF  NOTICE. 


Georgia,  . County. 

Before  me  came ,  who,  on  oath,  says  that 

he  served  a  written  notice,  of  which  the  foregoing  is  a  copy, 
upon on  the day  of ,  19 .... 

Sworn  to  and  subscribed  before  me  this 
day  of.... ,  19 


ANSWER  TO  WRIT  OF  CERTIORARI.     §5195. 


1    Complaint    on    note    in    Justice's 

vs.  r       Court District,  G.  M., 

J        County. 

Judgment  (or  verdict  as  the  case  may  be)  for  plaintiff 

,    term,   19 .... 

To  the  Superior  Court  of  said  County: 

Comes  now ,  justice  of  the  peace,  in  answer 

to  the  writ  of  certiorari  in  the  above  stated  case,  sued  out  by 
the  defendant  therein  and  directed  to  me,  replying  specifically 
to  the  allegations  in  the  said  petition,  says : 

1.  It  is  true  that  an  action  was  brought  to  the term, 

19.  .  .  .,  of  the  justice's  court  of  the district,  G.  M., 

of county,  by  said  plaintiff  against  said 

defendant,  said  action  having  been  tried  at  the term, 

19.  .  .  .,  of  said  court,  at  which  time  judgment  was  rendered  in 

favor  of  the  plaintiff  against  the  defendant  in  the  sum  of 

dollars. 

2.  The  pleas  of  payment  and  of  the  statute  of  limitations 
were  filed  at  the  appearance  term  of  said  case. 


CERTIORARI  341 

3.  That  at  said  term  said  case  came  on  to  be  tried,  and  that 
the  defendant  moved  to  dismiss  the  same  upon  the  ground  that 

the  summons  bore  date  of  the day  of ,  19.  .  .  ., 

was  made  returnable  on  the day  of ,  19 .  . .  . , 

which  said  motion  was  overruled  by  respondent,  who  presided 
as  justice  of  the  peace  at  the  trial  of  the  case. 

4.  That  the  defendant  objected  to  the  introduction  as  evi- 
dence of  the  note  sued  upon  on  the  ground  that  said  note  had  a 
subscribing  witness  thereto,  who  was  not  produced  to  prove  the 
execution  of  said  note,  and  no  cause  was  shown  to  the  court  why 
said  subscribing  witness  was  not  produced.     Which  said  objec- 
tion was  overruled  by  respondent  and  the  note  admitted  in 
evidence. 

5.  That  on  the  trial  of  said  case testified 

as  follows,  etc.,  etc.     [Set  out  here  fully  and  distinctly  all  the 
facts  and  circumstances  connected  with  the  case,  as  appearing  in 
the  evidence  on  the  trial  thereof,  so  as  to  fully  meet  the  require- 
ments of  the  petition  for  certiorari.] 

True  copies  of  all  the  proceedings  in  said  case  are  hereby 
certified  as  true  and  sent  up. 

All  of  which  is  respectfully  submitted. 

Given  under  my  hand  and  official  seal,  this day 

of 19 


EXCEPTIONS  TO  ANSWER  TO  WRIT.     §5196. 


'  1    Certiorari,    Superior 

Court,    Term,   19 


And  now  comes  the  defendant  in  the  certiorari,  by 

,  his  attorney,  before  the  call  of  the  above  stated 

case,  and  excepts  to  the  answer  of ,  the  Justice 

of  the  Peace  in  the  above  stated  case,  and  for  cause  of  exception 
says: 

1.  That  said  answer  is  incomplete  and  not  full,  in  this ;  that 

it  fails  to  set  out  the  testimony  of ,  a  witness 

sworn  upon  the  trial  of  said  case.     Who  testified  as  follows: 
[Here  set  out  substantially  the  testimony  of  the  witness  left  out 
of  the  answer.] 

2.  [State  all  further  grounds  of  exceptions.] 
WTherefore  the  said prays  that  the  foregoing 


342  CERTIOEARI 

exceptions  be  sustained,  and  that .-,  the  Justice 

of  the  Peace  aforesaid,  be  required  to  complete  and  make  fuller 
his  answer  in  the  particulars  mentioned. 

Attorney  for  Defendant  in  Certiorari. 


Exceptions  must  be  filed  in  writing,  and  notice  given,  before  case  is 
called  in  its  order  for  hearing.     15  App.  617  (83  S.  E.  1102). 


NOTICE  OF  EXCEPTIONS  TO  ANSWER  OF  MAGISTRATE. 


In Superior   Court, 

Term,  19 


Plaintiff  in  Certiorari 

vs. 

Certiorari. 
Defendant  in  Certiorari 

To ,  Defendant  in  Certiorari, 

Or ,  his  Attorney : 

You  are  hereby  notified  that  I,  as  attorney  for  the  plaintiff 
in  certiorari,  have  this  day  filed  exceptions  to  the  answer  of 

,  J.  P.,  who  presided  in  said  case  in  the  court 

below,  a  copy  of  which  said  exceptions  are  hereto  attached,  and 
that  said  exceptions  were  filed  previous  to  the  calling  of  said 
case  in  its  order  and  at  this  the  return  term  of  said  certiorari. 
This day  of ,19 

Attorney  for  Plaintiff  in  Certiorari. 


TRAVERSE  TO  ANSWER.     §5200. 

,  Superior  Court,  Certiorari 


,  .       from  Justice's  Court, 

District,  G.  M.,  of.  , 


County. 

And  now  comes  the  plaintiff  (or  defendant,  as  the  case  may 
be)  in  certiorari  in  the  above  stated  case,  by  his  attorney,.  .  .  . 

,  at  the  return  term  of  said  certiorari,  and 

before  the  hearing  thereof,  and  traverses  the  truth  of  the  answer 
and  says  that  (Insert  all  of  the  allegation  or  allegations  of  the 


CERTIORARI  343 

answer  sought  to  be  denied)  is  not  in  fact  true.     Of  which  he 
puts  himself  upon  the  country. 

This day  of ,  19 

Attorney  for  Plaintiff  in  Certiorari. 

Georgia, County. 

In  person  appeared ,  the  plaintiff  in 

certiorari  in  the  above  stated  case,  who  on  oath  says  that  the 
statements  contained  in  the  foregoing  traverse  are  true. 

Sworn  to  and  subscribed  before  me  this 

day  of ,  19 

.J.P. 


Where  answer  was  paragraphed,  traverse  saying  that  "allegations  in 
the  answer  as  follows,  to  wit:  Paragraphs  2,  3  and  4  is  not  in  fact 
true,  of  which  he  puts  himself  upon  the  country,"  while  subject  to 
grammatical  criticism,  sufficiently  complies  with  Code,  §5200.  18 
App.  288  (89  S.  E.  342). 


JUDGMENT  OF  THE  COURT. 


*  I  Certiorari  in Superior 

vs  r 

Court,    Term,  19 


Upon  hearing  the  above  stated  case,  it  is  ordered  by  the  court, 
that  the  certiorari  be  sustained,*  and  that  the  judgment  rendered 
in  the  court  below  be  set  aside,  and  a  new  trial  had  therein. 
And  it  is  further  ordered  that  the  plaintiff  in  certiorari  be 
allowed  to  enter  up  judgment  against  the  defendant  for  the  costs. 

Judge  of Superior  Court. 


[*NOTE. — If  the  certiorari  is  not  sustained  the  order  should  be  "that 
the  certiorari  be  overruled  and  dismissed.  Let  the  defendant  in  cer- 
tiorari have  leave  to  sign  up  judgment  in  this  court  against  the  plaintiff 

in  certiorari,  and his  security  on  bond  for  the  sum  recovered 

in  the  court  below  by  the  said  plaintiff  in  certiorari,  to  wit,  the  sum 
of dollars,  together  with  the  costs  in  this  court."] 


JUDGMENT  FOR  COSTS. 


Whereupon,  it  is  adjudged  by  the  court  that 

plaintiff  in  certiorari,  recover  of ,  defendant 


344  CHARTERS 

in  certiorari,  the  sum  of dollars  and, 

cents  for  costs. 

This day  of ,  19 


Attorney  for  Plaintiff  in  Certiorari. 


CHARTERS.     §§2192-2202,  2822-2861. 


SUPERIOR  COURT  CHARTERS.     §§2822-2861. 


PETITION  FOR  CHARTER. — I. 


Georgia, County. 

To  the  Superior  Court  of  said  County: 

The  petition  of  John  Doe  and  Richard  Roe,  of  said  county, 
shows  to  the  court  the  following  facts : 

1st.     Petitioners,  together  with  their  associates,  desire  to  be 

incorporated  under  the  name  of  the Company, 

for  the  period  of  twenty  years,  with  the  right  to  renew  said 
charter  at  the  expiration  of  said  time.  The  object  of  said  cor- 
poration is  pecuniary  gain  and  to  carry  on  and  maintain  a 

general  mercantile  business  in  the  city  of ,  and  to 

buy  and  sell  goods,  wares  and  merchandise,  cotton,  corn  and 
any  other  article  or  articles  that  may  be  dealt  in  by  the  said 
corporation,  and  to  make  contracts,  borrow  money,  loan  money, 
to  sue  and  be  sued,  and  do  any  and  all  acts  that  may  be  neces- 
sary in  the  operation  of  said  business. 

2nd.  The  principal  place  of  said  business  will  be  in  the  city 
of ,  in  said  county  of 

3rd.    The  capital  stock  of  said  corporation  shall  be 

dollars,  divided  into  shares  of dollars  each,  and 

they  desire  to  begin  in  business  when  ten  per  cent,  of  the  capital 
stock  is  paid  in. 

4th.  Petitioners  desire  that  said  corporation  may  have  the 
right  to  elect  a  Board  of  Directors  by  a  vote  of  its  stockholders, 
and  to  elect  a  President,  Vice-President  and  Secretary  and 
Treasurer  by  said  Board  of  Directors,  and  to  have  and  make 
all  proper  and  necessary  by-laws,  rules  and  regulations  that  are 


CHAETERS         .  345 

necessary  and  may  be  proper  for  the  carrying  on  of  said  busi- 
ness, and  also  to  have  and  use  a  common  seal. 

Wherefore,  petitioners  file  this  their  petition  in  the  office  of 
the  Clerk  of  the  Superior  Court,  and  pray  that  after  the  same 
has  been  advertised  as  required  by  law,  that  the  Court  by  proper 
order  grant  this  petition. 


Attorney  for  Petitioners. 
Filed  in  office,  this i  day  of 1  . 19 .... 

Clerk  Superior  Court. 
Georgia, County. 

Office  of  Clerk  of  Superior  Court  of County. 

I, ,  Clerk  of  the  Superior  Court  of 

County,  hereby  certify  that  the  foregoing  is  a  true  and  correct 
copy  of  the  application  for  charter,  as  the  same  appears  of  file 
in  this  office. 

This day  of ,  19 


Clerk  of  Superior  Court. 


PETITION  FOR  CHARTER, — II. 


Georgia, County. 

To  the  Superior  Court  of  said  County: 

The  petition  of ,  of County,  Georgia, 

and ,  of ,  State  of ,  respect- 
fully shows : 

1.  That  they  desire  for  themselves,  their  associates  and  suc- 
cessors, to  be  incorporated  and  made  a  body  politic  under  the 
name  and  style  of ,  for  the  period  of  twenty  years. 

2.  The  principal  office  of  said  company  shall  be  in  the  city 
of ,  State  and  county  aforesaid,  but  petitioners  de- 
sire the  right  to  establish  branch  offices  within  this  State  or 
elsewhere,  whenever  the  holders  of  a  majority  of  the  stock  may 
so  determine. 

3.  The  object  of  said  corporation  is  pecuniary  gain  to  itself 
and  its  shareholders. 

4.  The  business  to  be  carried  on  by  said  corporation  is .... 


346  .         CHARTERS 

5.  The  capital  stock  of  said  corporation  shall  be 

thousand  dollars   ($ ),  with  the  privilege  of  increasing 

same  to  the  sum  of thousand  dollars   ($ )   by 

a  majority  vote  of  the  stockholders,  said  stock  to  be  divided 
into  shares  of  one.  hundred  ($100.00)  dollars  each.     Ten  per 
cent,  of  the  amount  of  capital  to  be  employed  by  them  has  been 
actually  paid  in. 

[Petitioners  desire  the  right  to  have  the  subscriptions  to  said 
capital  stock  paid  in  money  or  property  to  be  taken  at  a  fair 
valuation.] 

[Petitioners  further  desire  to  issue  common  and  preferred 
stock  in  such  proportion  as  the  stockholders  may  determine.] 
(See  "Preferred  Stock,"  post,  p.  347.) 

6.  Petitioners  desire  the  right  to  sue  and  be  sued,  to  plead 
and  be  impleaded,  to  have  and  use  a  common  seal,  to  make  all 
necessary  by-laws  and  regulations,  and  to  do  all  other  things 
that  may  be  necessary  >  for  the  successful  carrying  on  of  said 
business,  including  the  right  to  buy,  hold,  and  sell  real  estate 
and  personal  property  suitable  to  the  purposes  of  the  corpora- 
tion, and  to  execute  notes  and  bonds  as  evidence  of  indebted- 
ness incurred,  or  which  may  be  incurred,  in  the  conduct  of  the 
affairs  of  the  corporation  and  to  secure  the  same  by  mortgage, 
security-deed,  or  other  form  of  lien,  under  existing  laws. 

7.  They  desire  for  said  incorporation  the  power  and  authority 
to  apply  for  and  accept  amendments  to  its  charter  of  either 
form  or  substance  by  a  vote  of  a  majority  of  its  stock  outstand- 
ing at  the  time.     They  also  ask  authority  for  said  incorpora- 
tion to  wind  up  its  affairs,  liquidate  and  discontinue  its  busi- 
ness at  any  time  it  may  determine  to  do  so  by  a  vote  of  two- 
thirds  of  its  stock  outstanding  at  the  time. 

8.  They  desire  for  the  said  incorporation  the  right  of  re- 
newal when  and  as  provided  by  the  laws  of  Georgia,  and  that 
it  have  all  such  other  rights,  powers,  privileges  and  immunities 
as  are  incident  to  like  incorporations  or  permissible  under  the 
laws  of  Georgia. 

Wherefore,  petitioners  pray  to  be  incorporated  under  the 
name  and  style  aforesaid  with  the  powers,  privileges  and  im- 
munities herein  set  forth,  and  as  are  now,  or  may  hereafter  be, 
allowed  a  corporation  of  similar  character  under  the  laws  of 
Georgia. 


[NOTE. — The  clauses  embraced  in  the  brackets  in  par.  5,  above,  may 
be  omitted  if  desired.] 


CHARTERS  347 

PREFERRED  STOCK. 


[In  lieu  of  par.  5  of  the  last  form  the  following  may  be  inserted:] 

The  capital  stock  of  the  company  shall  consist  of 

shares  of  the  par  or  face  value  of  $ per  share,  and 

shares  of  preferred  stock  of  the  par  or  face  value  of  $ per 

share.  The  rights  of  holders  of  preferred  stock  shall  be  set 
forth,  and  determined  by  the  by-laws  to  be  adopted  by  the 
corporation  at  its  first  meeting  held  for  organization.  Such 
parts  of  said  by-laws  as  relate  to  the  rights  of  preferred  stock- 
holders shall  not  thereafter  be  altered,  amended  or  rescinded 
without  the  unanimous  consent  of  all  of  said  preferred  stock- 
holders present  and  voting  at  such  meeting. 

Filed  in  office  this day  of ,  19.  .. 


Clerk. 
Georgia,  ..........  County. 

Office  of  Clerk  of  Superior  Court  of  ........  County. 


I,  ............  ,  Clerk  of  the  Superior  Court  of  ......... 

County,  hereby  certify  that  the  foregoing  is  a  true  and  correct 
copy  of  the  application  for  charter,  as  the  same  appears  of  file 
in  this  office. 

This  .........  day  of  ........  ,  19.  .. 


Clerk  of  Superior  Court. 


AGREEMENT  AND  STOCK  SUBSCRIPTIONS. 


Georgia, County. 

The  premises  herein  considered  are  as  follows:     John  Doe, 
Richard  Roe  and  John  Smith  have  applied  to  the  Superior 

Court  of County  and  obtained  at  the Term, 

1917,  of  said  court  a  charter  for  the  Atlanta  Gas  Producer 
Company,  granted  to  them  and  their  associates,  wherein  the 
capital  stock  of  said  Company  is  to  be  $100,000,  divided  into 
shares  of  stock  of  $100.00  each,  making  in  all,  one  thousand 
(1000)  shares;  the  object  of  said  Company  being  to  manufac- 
ture producer  gas  for  sale,  and  to  supply  the  same  for  pecuniary 
gain,  to  such  person  or  persons  as  may  contract  for  and  use  the 
same.  Now,  the  undersigned  being  conversant  with  the  terms 


348  CHARTERS 

of  said  Charter  and  the  object  of  said  proposed  corporation, 
and  desiring  to  associate  ourselves  with  the  incorporators  as 
stockholders  in  said  Company,  hereby  aerree  and  do  subscribe 
for  the  several  numbers  of  shares  set  opposite  our  signatures 
hereinafter.  It  being  hereby  agreed  and  expressly  understood 
that  this  subscription  shall  be  collected  by  and  payable  to  such 
person  or  persons  as  may  be  appointed  or  designated  upon  the 
organization  of  the  Company  as  the  proper  person  to  receive 
the  same,  and  to  be  paid  in  as  follows:  Ten  per  cent,  thereof 
upon  the  organization  of  the  Company,  and  the  remainder  in 
such  installments  and  at  such  times  as  may  be  afterwards  de- 
termined upon  and  called  for  by  the  directors  of  the  Company, 
and  it  is  further  expressly  understood  and  agreed  that  there  are 
no  conditions,  contracts,  agreements  or  release  in  reference  to 
this  subscription  outside  of  what  appears  on  the  face  of  this 
contract. 

This..  .  19.. 


BY-LAWS. 


BY-LAWS  OF  THE  .  .  .  .  COMPANY  OF  GEORGIA. 


AETICLE  I. 


MEETING  OF  STOCKHOLDERS. 


SECTION  1.     The  annual  meeting  of  the  stockholders  of  this 
company  shall  be  held  at  the  principal  office  of  the  company  in 

the  city  of on  the  first  (Wednesday)   after 

the Monday  of in  each  year,  at  twelve 

o'clock  noon  on  that  day  (unless  such  day  be  a  legal  holiday,  in 
which  case  the  meeting  shall  be  held  at  the  same  hour  on  the 
next  day  following,  that  is  not  a  legal  holiday),  for  the  election 
of  directors,  and  the  transaction  of  such  other  business  as  may 
then  properly  come  before  said  meeting.  A  written  or  printed 
notice  of  time  and  place  of  such  meeting  shall  be  given  by  the 


CHARTERS  34r9 

secretary,  by  delivery  of  or  by  mailing  such  notice  to  each  stock- 
holder, addressed  to  him  at  his  usual  place  of  business,  or  such 
address  as  may  appear  on  the  books  of  the  company,  at  least  ten 
days  previous  to  such  meeting,  and  in  such  other  manner,  if 
any,  as  may  be  prescribed  by  law. 

If  for  any  reason  the  annual  election  shall  not  be  held  as 
hereinbefore  provided,  it  may  be  held  on  any  subsequent  day 
to  be  fixed  by  the  Board  of  Directors. 

SEC.  2.  Special  meetings  of  the  stockholders  may  be  called 
at  any  time  by  the  president  or  Board  of  Directors,  and  the 
president  shall  call  a  special  meeting  whenever  he  is  requested 
in  writing  so  to  do  by  the  stockholders  representing  one-third 
of  the  capital  stock.  Such  request  may  specify  the  time,  place 
and  object  of  the  proposed  meeting. 

A  written  or  printed  notice  of  the  time,  place  and  object  of 
every  special  meeting  shall  be  given  by  the  secretary  by  delivery 
of,  or  by  mailing  such  notice  to  each  stockholder,  addressed  to 
his  usual  place  of  business  or  such  address  as  may  appear  on 
the  books  of  the  company,  at  least  ten  days  previous  to  such 
meeting  and  in  such  other  manner,  if  any,  as  may  be  prescribed 
by  law. 

SEC.  3.  At  said  meeting  of  the  stockholders  a  majority  in 
interest  of  the  stockholders  shall  constitute  a  quorum  for  the 
transaction  of  business,  except  as  otherwise  provided  by  law, 
and  except  that  a  less  number  may  adjourn  a  meeting. 

At  said  meeting  of  stockholders,  each  stockholder  shall  be 
entitled  to  one  vote  for  each  share  of  stock  standing  in  his 
name  on  the  books  of  the  company,  and  such  vote  may  be  cast 
by  the  stockholder  in  person,  or  by  proxy,  properly  authorized 
by  written  or  printed  appointment,  executed  by  stockholder  him- 
self, or  by  his  duly  authorized  attorney. 


ARTICLE  II. 


DIRECTORS. 

SECTION  1.     The  entire  general  charge  of  the  affairs  of  the 

company  shall  be  managed  and  conducted  by directors, 

to  be  elected  by  the  stockholders  for  this  company  at  the  time 
and  place  fixed  by  the  by-laws.  They  shall  hold  office  for  one 
year  and  until  their  successors  are  elected. 


350  CHARTERS 

A  majority  of  the  Board  of  Directors  at  a  meeting  duly  assem- 
bled shall  be  necessary  to  constitute  a  quorum  for  the  transaction 
of  business,  and  the  act  of  a.  majority  of  the  directors  present 
at  a  meeting  at  which  a  quorum  is  present  shall  be  the  act  of 
the  board.  Any  vacancy  or  vacancies  in  the  board  may  be  filled 
for  the  period  until  the  next  election  by  the  remaining  directors. 

SEC.  2.  A  regular  meeting  of  the  Board  of  Directors  shall 
be  held  on  the  day  of  and  immediately  after  the  annual  meeting 
for  the  election  of  directors,  provided  a  majority  of  the  directors 
elected  at  said  meeting  shall  be  present.  They  shall  organize 
and  proceed  to  the  election  of  officers  as  hereinafter  provided. 

SEC.  3.  Special  meetings  of  the  directors  may  be  called  at 
any  time  by  the  president,  or  shall  be  called  by  him  or  by  the 
secretary,  upon  request  in  writing,  signed  by  two  of  the  direc- 
tors, specifying  the  time  and  place  and  object  of  the  proposed 
meeting. 

SEC.  4.  A  written  or  printed  notice  of  the  time,  place  and 
object  of  every  special  meeting  of  the  Board  of  Directors  shall 
be  given  the  secretary,  by  delivery  of,  or  by  mailing  such  notice 
to  each  director,  addressed  to  him  at  his  usual  place  of  business, 
or  such  address  as  may  appear  on  the  books  of  the  company,  at 
least  three  days  before  the  time  named  for  the  meeting. 

SEC.  5.  Each  director  shall  be  entitled  to  a  fee  of  $ 

for  punctual  attendance  at  each  meeting  of  the  Board  of  Direc- 
tors or  of  any  committee  thereof. 


ARTICLE  III. 


EXECUTIVE  COMMITTEE. 


SECTION  1.  The  Board  of  Directors  shall,  at  each  annual 
meeting,  elect  three  of  its  members  \vho  shall  constitute  an 
Executive  Committee,  which  Executive  Committee  shall  possess 
all  the  powers  and  authority  when  the  Board  of  Directors  is 
not  in  session,  which  the  Board  of  Directors  does,  or  can  provide 
when  in  session,  by  virtue  of  the  articles  of  organization  of  this 
corporation.  The  Executive  Committee  shall  keep  the  returns 
of  all  its  transactions,  which  shall  be  read  at  each  meeting  of 
the  Board  of  Directors,  and  the  Board  of  Directors,  at  such 
meeting  shall  have  the  power  to  disapprove,  rescind  and  annul 


CHABTEBS  351 

any  act  or  transaction  of  the  Executive  Committee,  and  all  the 
acts  and  transactions  of  the  Executive  Committee  not  disap- 
proved, rescinded  or  annulled,  shall  be  held  and  taken  to  be 
approved  and  confirmed  by  the  Board  of  Directors. 

SEC.  2.  The  Executive  Committee  may  fix  the  time  and 
place  of  holding  its  regular  meeting,  and  after  such  time  and 
place  shall  have  been  fixed,  no  notice  of  such  regular  meeting 
shall  be  necessary. 

SEC.  3.  Special  meetings  of  the  Executive  Committee  may 
be  called  by  the  president  whenever  he  shall  think  proper,  and 
he  shall  call  such  meeting  whenever  requested  in  writing  to  do 
so  by  two  of  the  members  of  the  Executive  Committee. 

A  written  notice  of  the  time,  place  and  object  of -any  special 
meeting  of  the  Executive  Committee  shall  be  given  by  the 
secretary,  by  delivery  of  or  by  mailing  such  notice  to  each  mem- 
ber, addressed  to  his  usual  place  of  business,  or  such  address  as 
may  appear  on  the  books  of  the  company,  at  least  three  days 
before  the  time  named  for  the  meeting. 


AETICLE  IV. 


v  OFFICERS. 

SECTION  1.  The  officers  of  the  company  shall  consist  of  a 
president,  vice-president,  secretary,  and  treasurer,  to  be  elected 
by  the  Board  of  Directors  at  a  meeting  for  organization  held 
after  the  annual  meeting  of  the  stockholders,  or  of  any  meeting 
held  in  lieu  of  said  meeting,  for  such  purpose.  Each  of  such 
officers  shall  serve  for  the  term  of  one  year,  and  until  the  election 
of  his  successor.  The  Board  of  Directors  may  also  appoint  an 
assistant  secretary,  a  superintendent,  and  such  other  officers, 
agents  and  employees  as  they  may  deem  necessary.  All  officers, 
agents,  or  employees,  so  appointed,  shall  be  removable  at  the 
pleasure  of  the  directors.  Any  vacancy  in  any  office  may  be 
filled  by  the  Board  of  Directors. 

(a)  The  office  of  secretary  and  treasurer  may  be  consolidated 
in  one  person,  in  which  case  he  shall  discharge  the  duties  of 
both  officers,  as  defined  in  articles  VI  and  VII  hereof. 


352  CHARTERS 

ARTICLE  V. 


PRESIDENT  AND  VICE-PRESIDENT. 


SECTION  1.  The  president  shall  preside  at  all  meetings  of 
the  corporation,  and  of  the  Board  of  Directors,  and  shall  sign 
all  certificates  of  stock,  and  all  notes  and  obligations  of  the  cor- 
poration, unless  otherwise  directed  by  the  Board  of  Directors, 
and  all  contracts  and  instruments,  when  authorized  by  the 
directors  or  Executive  Committee,  and  generally  shall  perform 
all  duties  usually  incumbent  upon  such  officers,  and  such  as  may 
be  required  of  him  by  the  Board  of  Directors.  He  shall  make 
annual  reports  of  the  condition  of  the  company,  and  submit  the 
same  to  the  stockholders  at  their  Annual  meeting. 

The  vice-president  shall  perform  all  the  duties  of  the  president 
in  his  absence,  and  such  other  duties  as  may  be  required  of  him 
by  the  Board  of  Directors. 


ARTICLE  VI. 


TREASURER. 


SECTION  1.  The  treasurer  shall  receive  and  have  the  custody 
of  all  moneys  and  securities  of  the  corporation,  shall  pay  such 
dividends  as  may  be  declared  from  time  to  time  by  the  Board 
of  Directors,  and  do  and  perform  all  such  duties  as  may  be 
required  of  him  by  its  Board  of  Directors,  and  such  other  duties 
as  usually  devolve  upon  such  oflScers. 

He  shall  deposit  funds  to  the  credit  of  the  company  in  such 
banks  or  trust  companies  as  the  Board  of  Directors  shall  direct, 
and  shall  disburse  the  same  under  the  direction  of  the  Board  of 
Directors  or  the  Executive  Committee.  He  shall  sign  all  cer- 
tificates of  stock,  when  signed  by  the  president. 

SEC.  2.  He  shall  keep  regular  books  and  full  accounts,  show- 
ing all  his  receipts  and  disbursements,  which  books  and  accounts 
shall  be  open  at  all  times  to  the  inspector  or  president,  or 
of  any  member  of  the  board.  At  the  end  of  each  fiscal  year,  he 
shall  submit  to  the  directors  detailed  statements  of  his  receipts 


CHARTERS  353 

and  disbursements,  and  shall  also  from  time  to  time,  at  request, 
make  reports  to  the  president  as  to  the  financial  condition  of  the 
company. 

SEC.  3.  The  directors  may  require  the  treasurer  to  give  such 
security  for  the  faithful  performance  of  his  duties  as  they  shall 
from  time  to  time  determine. 


ARTICLE  VII. 


SECRETARY. 

SECTION  1.  The  secretary  shall  have  the  care  and  custody 
of  the  books  of  said  corporation,  give  the  necessary  notices  of 
all  the  meetings  of  the  stockholders,  board  of  directors  and 
Executive  Committee,  and  keep  and  retain  the  proceedings  of 
all  such  meetings. 

He  shall  have  the  custody  of  the  seal  of  the  company,  and 
shall  affix  the  same  to  all  instruments  requiring  the  seal,  when 
authorized  by  the  Board  of  Directors  or  the  Executive  Com- 
mittee. 

He  shall  keep  such  other  books  and  returns,  and  perform  all 
such  other  duties  as  may  be  assigned  to  him  by  the  Board  of 
Directors,  the  president,  or  the  Executive  Committee. 


ARTICLE  VIII. 


CAPITAL  STOCK. 


SECTION  1.  Subscriptions  to  the  capital  stock  shall  be  paid 
in  at  such  times  and  in  such  installments  as  the  Board  of  Direc- 
tors may,  by  resolution,  require. 

SEC.  2.  Certificates  of  stock  shall  be  issued,  in  manner  pre- 
scribed by  law,  to  each  stockholder,  showing  the  number  of 
shares  to  which  he  is  entitled.  Each  certificate  shall  be  signed 
by  the  president  and  treasurer,  and  have  the  corporate  seal 
affixed  thereto. 

SEC.  3.  Stock  shall  be  transferable  only  by  entry  upon  the 
books  of  the  company  upon  surrender  of  the  outstanding  cer- 
tificate or  certificates  therefor,  with  the  assignment  thereof  duly 
executed.  Each  certificate,  surrendered  upon  the  transfer  of 


354  CHARTERS 

stock,  shall  be  at  once  cancelled  and  pasted  on  the  margin  or 
stub  in  the  book  from  which  it  was  taken  when  issued. 

SEC.  4.  In  case  of  any  application  for  the  issue  of  a  new 
certificate  of  stock  in  place  of  one  or  more  claimed  to  have  been 
lost  or  destroyed,  the  same  shall  be  referred  to  the  Board  of 
Directors,  who  shall  determine  whether  to  grant  such  applica- 
tion, and  the  terms,  if  any,  upon  which  it  is  granted. 

SEC.  5.  Preferred  stock.  For  form  defining  and  regulating 
the  rights  of  preferred  stockholders,  see  Frost's  Incorporation 
and  Organization  of  Corporations,  (1906),  pp.  517-518. 


ARTICLE  IX. 


DIVIDENDS. 


SECTION  1.  Dividends  may  be  declared  and  paid  out  of  the 
surplus  profits  of  the  company  as  often  and  at  such  times  as 
the  directors  may  determine. 


ARTICLE  X. 


SEAL. 


SECTION  1.    The  common  seal  of  the  company  shall  be  in  the 
following  form:     (Attach  impression  of  it.) 


ARTICLE  XI. 


1  BY-LAWS. 

SECTION  1.     These  by-laws  may  be  altered  or  amended  and 
additional  by-laws  adopted  by  a  majority  vote  at  any  meeting 
of  the  stockholders  in  the  notice  of  which  the  proposed  amend- 
ment or  new  by-laws  shall  be  set  forth  at  large. 
On  motion,  it  was  voted  to  adjourn. 

Attest : 

Secretary  of  the  Meeting. 


CHATTEL  MORTGAGES — CLAIMS  355 

JUDGMENT  GRANTING  CHARTER. 


Superior  Court, Term,  19 .... 

The  above  and  foregoing  petition  by 

and for  a  charter  for  the Company 

coming  on  for  a  hearing,  and  it  appearing  that  the  same  has 
been  published  as  required  by  law,  and  the  object  of  said  petition 
coming  within  the  purview  of  the  law,  it  is  considered,  ordered 
and  adjudged  that  the  prayer  of  the  said  petition  be,  and  the 

same  is  hereby  granted,  and  the Company 

is  hereby  chartered  as  a  corporation,  with  perpetual  succession 
for  twenty  (20)  years  from  this  date,  with  the  right  to  renew 
said  charter  at  the  end  of  said  time  by  conforming  to  the  law, 

and  the  said Company  has  the  right  to  sue 

and  be  sued,  to  contract  and  be  contracted  with,  to  have  and 

use  a  common  seal,  to  carry  on  the  business  of  such 

Company  as  set  out  in  said  petition,  and  to  begin  business  when 
ten  (10%)  per  cent,  of  the  capital  stock  is  paid  in.  The  further 
prayers  of  the  petition  are  also  granted.  Let  this  judgment  be 
filed  and  recorded  in  this  court,  and  the  same  is  hereby  declared, 
along  with  said  petition,  by  a  certified  copy  thereof,  to  be 
evidence  of  said  incorporation  and  its  charter. 

This day  of ,  19 

Judge  of  Superior  Court. 


CHATTEL  MORTGAGES. 
(See  Mortgages,  post.) 


CLAIMS.     §§5157-5179,  6272. 


CLAIM  AFFIDAVIT.     §5157. 


Georgia, County. 

Before  me,  a in  and  for  said  county,  in 

person  came ,  who  on  oath  says  that 

[specify  the  property  levied  on] lately,  on  the 

......  .day  of ,  19.  . .  .,  levied  on  by , 

sheriff  of  said  county,  under  and  by  virtue  of 

in  favor  of against ,  issued 


356  CLAIMS 

from  the ,  as  the  property  of  defendant 

,  is  not  the  property  of  said  defendant,  but 

is  the  property  of  affiant .  .  ., 

[Deponent  sign] 

Sworn  to  and  subscribed  before  me  this 
day  of .,  19 


.  P.  and  ex-officio  J.  P. 


BOND.     $5158. 


Georgia,  ........  •  •  •  •  County. 

Know  all  men  by  these  presents,  that  we,  ..............  ,  as 

principal,  and  ...............  ,  as  security,  are  held  and  bound 

unto  .............  ,  plaintiff  in  fi.  fa.,  in  the  sum  of  .....  ... 

dollars,  for  the  payment  of  which  we  bind  ourselves,  our  heirs, 
executors  and  administrators,  jointly  and  severally,  firmly  by 
these  presents.     Signed,  sealed  and  dated  this  ..........  day 

of  ..................  ,  19  ____ 

The  condition  of  this  obligation  is  as  follows  :  ............  , 

(sheriff  of  said  county),  having  on  the  ......  day  of  .........  , 

19.  .  .  .,  by  virtue  of  an  execution,  issued  from  the  .......... 

court  of  .............  levied  upon  [a  parcel  of  land  ......... 

(describe  realty  and  personalty  in  levy)  .  .  .  .  .....  tyin£  in  said 

county  and  adjoining  the  lands  of  ..............  on  the  east, 

..............  on  the  south,  .............  on  the  west,  and 

..................  on  the  north,  the  place  whereon  the  said 

............  ...  .now  resides,  containing  two  hundred  acres, 

more  or  less  ;  and  ......  horse  mules,  both  of  medium  size  .... 

years  old]  ,  as  the  property  of  the  said  ..............  ,  to  which 

said  property  the  said  ..............  has  interposed  his  claim. 

!N~ow,  should  the  said  .............  .  .  .well  and  truly  pay  to 

the  said  ...............  ,  plaintiff,  all  the  damages  which  the 

jury  on  the  trial  of  the  right  of  property  may  assess  against 
him,  in  case  it  should  appear  that  said  claim  was  made  for  the 
purpose  of  delay  only,  then  this  bond  to  be  void,  otherwise  of 
force. 

.....................  Principal  [L.  S.] 

.....................  Security    [L.  S.] 

Executed  in  the  presence  of  and  approved 
by  me,  this.  .  .  .day  of  ........  ,  19.  ... 


, 


CLAIMS  357 

AFFIDAVIT  iflr  FORMA  PAUPERIS.     ^5164. 


Georgia, County. 

Personally  came  before  the  undersigned  attesting  officer, 

,  the  subscriber,  who,  being  sworn,  on  oath 

says:  I, ,  do  swear  that  I  do  not  interpose 

this  claim  for  delay  only ;  that  I  bona  fide  claim  the  right  and 
title  to  the  same;  that  I  am  advised  and  believe  that  said  claim 
will  be  sustained,  and  that  from  poverty  I  am  unable  to  give 
bond  and  security  as  now  required  by  law. 

Sworn  to  and  subscribed  before  me  this.  .  .  . .day 

of ,19 

Claimant. 


FORTHCOMING  BOND.    §5160. 


Georgia, County. 

Know  all  men  by  these  presents,  that  we, ,  as 

principal,  and ,  as  security,  are  bound  unto 

,  sheriff  [state  name  of  levying  officer]  of  said 

county,  in  the  sum  of. dollars,  for  the  payment 

of  which  we  bind  ourselves,  our  heirs,  executors  and  adminis- 
trators, jointly  and  severally,  firmly  by  these  presents.  Signed, 
sealed  and  dated  this ..."...  day  of ,  19 .... 

The  condition  of  this  obligation  is  as  follows : , 

(sheriff  as  aforesaid),  having  on  the day  of , 

19.  .  .  .,  levied  a  certain  fi.  fa.  issued  from  the court 

of  said  county  in  favor  of against , 

upon ,  to  which  said has 

interposed  his  claim.    Now  should  the  said deliver, 

or  cause  to  be  delivered,  said to  said 

at  the  time  and  place  of  sale;  provided  said  property  levied 
upon  shall  upon  the  trial  of  the  right  of  property  be  found  sub- 
ject to  said  fi.  fa.,  then  this  bond  to  be  void,  otherwise  of  force. 

Principal    [L.  S.] 

Security      [L.  S.] 

Executed  in  the  presence  of  and  approved 

by  me,  this ....  day  of ,  19 .... 

,J.P. 


358  CLAIMS 

FORTHCOMING  BOND  OF  PLAINTIFF  IN  Fi.  FA.     §5165. 


Georgia, County. 

Know  all  men  by  these  presents,  that  we, , 

as  principal,  and ,  as  security,  are  held  and 

bound  unto ,  sheriff  of  said  county,  in  the  sum 

of dollars,  for  the  payment  of  which  we  bind 

ourselves,  our  heirs,  executors  and  administrators,  jointly  and 

severally,  by  these  presents.     Signed,  sealed  and  dated 

day  of ,19 

The  condition  of  the  above  obligation  is  as  follows : , 

sheriff  as  aforesaid,  having  on  the day  of .  . , 

19. . . .,  levied  a  certain  execution  issued  from  the 

court  of  said  county,  in  favor  of  said against 

upon ,  as  the  property  of  said 

,  and having  interposed  his 

claim  to  said • ,.  .,  and  being  unable  to  give  a 

forthcoming  bond  for  the  same,  and  the  said 

having  elected  to  give  the  bond  and  receive  possession  of  the 

property.     Now  should  the  said ,  plaintiff  in 

execution,  deliver,  or  cause  to  be  delivered,  said 

at  the  time  and  place  of  sale ;  provided,  said. .  .  ., 

shall,  upon  the  trial  of  the  right  of  property  in  the  same,  be 
found  subject  to  said  execution,  and  if  not  found  subject,  then 
to  the  said  sheriff,  or  his  successor  in  office,  at  the  termination 
of  said  claim  case,  to  be  disposed  of  according  to  law,  then  this 
bond  to  be  void,  otherwise  of  force. 

Principal    [L.  S.] 

Security    [L.  S.] 

Approved : 
,  Sheriff. 


ISSUE  TENDEKED.     §6272. 


And  now  comes ,  the  within  mentioned 

plaintiff,  by ,  his  attorney,  and  says  that  the 

property  levied  upon  as  the  property  of  the  defendant,   and 
claimed  by  the  claimant,  is  not  the  property  of  the  claimant  but 


CLAIMS  359 

is  the  property  of  said  defendant,  and  is  subject  to  the  execution 
in  favor  of  the  plaintiff  levied  thereon. 

And  of  this  he  puts  himself  upon  the  country.     This 

day  of ,19 

. 

Plaintiff's  Attorney. 


[NOTE. — "An  issue  must  be  tendered  within  five  minutes  after  the 
announcement  of  ready  by  both  parties,  or  the  levy  will  be  dismissed, 
in  the  discretion  of  the  court."  §6272.] 


ISSUE  JOINED. 


And  the  claimant  doth  the  like,  and  says  that  the  property 
levied  on  is  not  subject  to  said  execution. 

Claimant's  Attorney. 


OATH  OF  JURY  IN  CLAIM  CASES.    §5169. 


[The  following  oath  should  be  administered  to  the  jury  on  the  trial 
of  the  claim  of  property  either  real  or  personal:] 

In  addition  to  the  oath  you  have  already  taken  you  do  further 
swear  that  you  will  give  such  damages,  not  less  than  ten  per 
cent.,  as  may  seem  reasonable  and  just,  to  the  plaintiff  against 
the  claimant,  in  case  it  shall  be  sufficiently  shown  that  such 
claim  was  made  for  delay  only.  So  help  you  God. 


VERDICT.     §5169. 


We,  the  jury,  find  the  property  subject. 
This day  of., ,  19 


Foreman. 


JUDGMENT.    §5169. 


Whereupon,  it  is  considered  and  adjudged  by  the  court  that 
the  fi.  fa.  proceed  against  the  property  levied  upon,  and  that  the 


360  CLERK  OF  COURT 

plaintiff  in  fi.  fa.  recover  of  the  claimant,   , 

the  sum  of dollars  and cents,  costs  in  this  behalf 

expended. 

Judgment  signed  this day  of ,  19.  ... 


Plaintiff's  Attorney. 

Judge  Superior  Court County. 


JUDGMENT  WHERE  DAMAGES  ARE  FOUND. 


Whereupon,  it  is  considered  and  adjudged  by  the  court  here 
that  the  plaintiff  in  execution  do  recover  against  the  claimant, 

.  .  .  ., ,  and  his  security,  ,  the 

sum  of dollars  for  his  damages,  and  the  sum 

of dollars  for  his  costs,  in  this  behalf  expended. 

Judgment  signed  this day  of ,  19 .... 

Plaintiff's  Attorney. 


Abstract  of  title  not  required  to  bet  set  out  by  claimants.  138/862 
(2-a)  (76  S.  E.  378).  Claimant  can  not,  upon  trial  of  issue,  amend 
claim  by  alleging  that  mortgagor  is  not  indebted  to  mortgagee.  16 
App.  382  (2)  (85  S.  B.  354). 


CLERK  OF  COURT.     §§4878-4901  (e). 


OATH.     §4889. 


I  do  swear  that  I  will  truly  and  faithfully  enter  and  record 
all  the  orders,  decrees,  judgments,  and  other  proceedings  of  the 

superior  court  of  the  county  of ,  and  all  other 

matters  and  things  which  by  law  ought  by  me  to  be  recorded ; 
and  that  I  will  faithfully  and  impartially  discharge  and  per- 
form all  the  duties  required  of  me,  to  the  best  of  my  under- 
standing. So  help  me  God. 

Clerk  of Superior  Court. 


CLERK  OF  COURT  361 

BOND  OF  CLERK.     §4890. 


Georgia, County. 

We, .  .  . ., ,  as  principal,  and 

and ,  as  securities,  acknowledge  ourselves  held 

and  bound  to ,  Governor  of  said  State  for  the 

time  being,  and  his  successors  in  office,  in  the  sum  of  three 
thousand  dollars,  subject  to  the  following  conditions : 

The  condition  of  the  above  obligation  is  such — whereas,  the 

above  bound was  on  the day  of , 

19.  . .  .,  elected  clerk  of  the., court  of  said  county  and 

State :  now  should  said faithfully  and  impartially 

discharge  and  perform  all  and  singular  the  duties  required  of 
him  by  law,  as  clerk  aforesaid,  according  to  the  trust  reposed  in 
him,  then  the  above  obligation  to  be  void;  otherwise,  of  force. 

Witness  our  hands  and  seals  this day  of ,  19.  ... 

i Principal   [L.  S.] 

Security     [L.  S.] 

, Security     [L.  S.] 

Attest : 


BOND  OF  DEPUTY  CLERK. 


Georgia,  . .  .  ., County. 

We, ,  as  principal,  and 

and ,  as  securities,  acknowledge  ourselves  held 

and  bound  to , ,  clerk  of  the court  of 

the  county  aforesaid,  in  the  sum  of thousand 

dollars,  subject  to  the  following  conditions: 

The  condition  of  the  above  obligation  is  such — whereas,  the 

above  bound has  this  day,  by , 

clerk  of  the .  court  of  the  county  aforesaid,  been 

appointed  deputy  of  the  said ,  now,  should  the 

said faithfully  and  impartially  discharge  and 

perform  all  and  singular  the  duties  required  of  him  by  law,  as 
the  deputy  clerk  of  the court  of  said  county, 


362  CLERK  OF  COURT 

according  to  the  trust  reposed  in  him,  then  the  above  obligation 

to  be  void;  otherwise,  of  force.     This.  .  .  .day  of ,  19.  .. 

Witness  our  hands  and  seals. 

Principal    [L.  S.] 

Security     [L.  S.] 

, Security     [L.  S.] 

Attest : 


SCIRE  FACIAS  TO  MAKE  PARTIES. 


Georgia, County. 

To  all  and  singular  the  Sheriffs  of  said  State: 

}  Complaint  returned  to  the 
term,  19 .  .  .  . ,  of  the 
court  of  said  county. 

Whereas ,  plaintiff  in  the  above  case,  died, 

pending  said  action  of ,  and  his  death  has  been 

suggested  of  record.     And  whereas. has  been 

duly  appointed of  the  estate  of  said :  . 

Therefore,  you  are  hereby  commanded  to  serve  said 

with  a  copy  hereof,  and  let  him  show  cause  at  the  next  term  of 
said  court,  if  any  he  has  or  can,  why  he  should  not  be  made 

party  defendant  in  said  action  of ,  and  said 

action  proceed. 

Witness  the  Honorable ,.......,  Judge  of  said  court, 

this day  of ,  19.  ... 

,  Clerk. 


CLERK'S  CERTIFICATE  OF  AUTHORITY  OF  OFFICER. 


Georgia, County. 

I, , ,  Clerk  of ^  the  Superior  Court  in  and  for 

said  county,  and  keeper  of  the  records  and  seals  of  the  same 

(said  court  being  a  court  of  record),  do  certify  that , 

an  acting ,  was,  at  the  time  of  taking  said 

acknowledgement,  duly  elected,   appointed,   commissioned   and 
qualified   as  such,   and  that  he   is  legally   authorized   to  take 


CLERK  OF  COURT  363 

acknowledgements,  and  that  his  official  acts  are  entitled  to  full 
faith  and  credit. 
"  In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed 

the  seal  of  said  court,  at this day  of , 

19 

,  Clerk. 


CERTIFICATE  OF  CLERK  TO  EXEMPLIFICATION  OF  RECORD. 


Georgia, County. — ss. 

I, ,  clerk  of  the  Superior  Court  of  said 

county,  do  hereby  certify  that  I  have  compared  the  foregoing 

copy  of 

with  the  original  record  thereof,  now  remaining  in  this  office, 
and  the  same  is  a  correct  transcript  therefrom,  and  of  the  whole 
of  such  original  record,  and  that  said  court  is  a  court  of  record. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and 

affixed  the  seal  of  said  court,  this  the day 

of , ,19 

Clerk  Superior  Court County. 

Georgia, County. — ss : 

I, ,  judge  of  the  Superior  Court  of  the 

circuit,  and  presiding  judge  of  the  Superior  Court 

in  said  county,  do  hereby  certify  that  the  above  attestation  sub- 
scribed by ,  as  clerk  of  said  court,  is  sufficient 

and  in  due  form  of  law,  and  that  his  signature  thereto  is  genuine. 

Witness  my  hand  and  official  signature,  this  the day 

of ,  19 

Judge  Superior  Court Circuit. 

Georgia, County. — ss : 

I, ,  clerk  of  the  Superior  Court  in  and  for 

said  county,  hereby  certify  that  the  above  attestation  of 

,  judge  of  the  Superior  Court  of  the 

circuit,  is  his  genuine  signature,  and  that  he  is  judge  of  said 
court,  and  said  certificate  is  in  due  form  of  law. 

Given  under  my  hand  and  seal  of  office  this  the day 

of ,19 

Clerk  Superior  Court County. 


364  CONSIDERATION 

CONSIDEKATION. 


PLEA  OF  TOTAL  FAILURE  OF  CONSIDERATION. — I. 
§§4250,  4301,  5675. 


, 1    Complaint    on    note    in    Superior 

vs.  r       Court  of County. 

,.J  ..Term,    19.. 


Now  comes  the  defendant  in  the  above  named  and  stated  case 
and  for  further  plea  and  answer  thereto,  says : 

1st.  That  the  note  sued  on  was  given  for  the  purchase  price 

of  a  certain  house  and  lot  in  the  city  of ,  in  said 

county,  (here  describe  the  property)  and  for  no  other  considera- 
tion, and  that  said  note  was  made  and  given  on  the day 

of.. ,  19.  .  .  .,  as  alleged  in  said  petition. 

2nd.  Defendant  alleges  that  the  plaintiff  made  to  him,  de- 
fendant, a  warranty  title  to  said  property,  a  copy  of  which  is 
hereto  attached  and  marked  "Exhibit  A." 

3rd.  Defendant  further  shows  that  on  the day  of 

,  subsequent  to  the  said  sale  and  without  any 

notice  previously  to  this  defendant,  and  without  any  knowledge 
on  his  part  that  such  lien  existed,  the  sheriff  of  said  county 
levied  upon  said  property  and  sold  it  at  sheriff's  sale  on  the 

day  of ,  19.  .  .  .,  to  satisfy  an  execution 

issued  from  the  superior  court  of  said  county,  in  favor  of 

,.  .against  the  defendant,  and  the  proceeds  of 

said  sale  were  applied  on  the  said  execution  against  the  said 
defendant. 

4th.  Defendant  alleges  that  the  consideration  for  said  note 
sued  on  has  wholly,  utterly  and  entirely  failed  and  said  property 
has  been  taken  away  from  this  defendant,  and  this  defendant 
pleads  this  total  failure  of  consideration  against  said  note  and 
prays  to  be  dismissed  hence  with  his  reasonable  costs. 

Defendant's  Attorney. 

Georgia, ,. .  County. 

Personally  came  before  the  undersigned  attesting  officer, 
,  the  subscriber,  who,  being  duly  sworn,  on 


CONSIDERATION  365 

oath  says  that  the  facts  and  things  set  out  in  the  foregoing  plea 
and  answer  are  true. 

Sworn  to  and  subscribed  before  me,  this 
the day  of ,  19 

J.  P. 


PLEA  OF  TOTAL  FAILURE  OF  CONSIDERATION. — II. 
(See  72  Ga.  66,  67.) 


"Defendant  says  the  consideration  for  which  the  note  for  the 
one  6  H.  P.  Scofield  engine  was  given  has  entirely  failed, 
because  he  says  plaintiffs  warranted  said  engine  to  be  full  six 
horse  power,  and  to  be  in  good  condition,  in  all  which  plaintiffs 
were  mistaken,  the  engine  not  being  full  six  horse  power,  nor 
was  it  in  good  condition,  but  was  a  source  of  annoyance  and 
expense  to  defendant  almost  from  the  time  he  first  bought  it 
until  it  finally  broke  down  entirely,  and  is  now  worthless.  And 
of  this  he  puts  himself  upon  the  country.  And  for  further  plea 
in  this  behalf,  defendant  says  action  on,  etc.,  because  he  says 
the  consideration  of  the  gin  note  has  failed,  because  he  says  the 
gin  was  represented  as  a  good  gin,  when,  on  the  contrary,  the 
ribs  of  said  gin  were  made  of  inferior  soft  metal,  and  wore  out 

the  first  season." 

(The  above  plea  was  held  to  be  substantially  a  plea  of  partial  failure 
of  consideration.) 


PARTIAL  FAILURE  OF  CONSIDERATION — PLEA  OF. 


(State  the 'case.) 

And  for  further  answer  in  this  behalf the 

defendant  herein  named,  says : 

1.  That  the  consideration  of  the  alleged  claim  and  contract 
sued  on  has  partially  failed  in  this,  that  the  defendant  herein 

agreed  and  promised  to  pay  the  said  plaintiff  the  sum  of 

dollars  for  a  certain  horse,  the  price  of  which  is  the  foundation 
of  the  claim  sued  on. 

2.  The  defendant  alleges  that  the  plaintiff  represented  said 
horse  to  be  sound  and  well,  and  this  defendant,  relying  on  said 


366  CONSIDEBATION 

representation,  and  believing  the  same  to  be  true,  bought  said 
horse  of  the  plaintiff  at  and  for  the  agreed  price  aforesaid. 

3.  Defendant  alleges  that  at  the  time  of  said  purchase  said 
horse  was,  without  the  knowledge  of  this  defendant,  diseased  in 
both  of  his  eyes,  by  reason  of  which  he  lost  the  sight  of  one  of 
his  eyes  altogether  within  a  few  days  after  the  purchase  afore- 
said, and  the  sight  of  the  other  eye  became  and  was  and  is  so 
seriously  affected  as  practically  to  destroy  the  value  of  the  said 
horse. 

4.  Defendant  alleges  that  by  reason  of  said  defect  said  horse 
is  not  worth  more  than  the  sum  of dollars. 

And  this  the  defendant  is  ready  to  verify. 

Defendant's  Attorney. 


(NOTE:      If  suit  is   in  superior  court  on  note,  this  plea  must  be 
verified.) 


ILLEGALITY  OF  CONSIDEBATION,  PLEA  SETTING  UP. 

4286. 


I    Suit  on  note  in Superior 

Court,    Term,  19 


Now  comes  the  defendant  in  the  above  named  and  stated  case 
and  not  waiving  his  demurrer  hereinbefore  filed,  answering  said 
petition  for  answer,  says: 

1st.  The  consideration  of  the  note  sued  on  was  for  the  pur- 
chase of gallons  of  whiskey,  amounting  in  the 

aggregate  to  $ ,  for  which  said  note  was  given  on 

the day  of ,  19 .  .  .  . ,  in  the  city  of  Atlanta, 

and  for  no  other  consideration,  and  this  defendant  alleges  that 
said  sale  was  illegal,  unlawful  and  contrary  to  law,  the  said  note 
having  been  given  since  the  passage  of  the  Prohibition  Act  by 

the  Legislature  of  Georgia,  approved  the day  of , 

19.  .  .  .,  and  this  defendant  pleads  said  illegality  of  considera- 
tion as  against  said  note  sued  on,  and  prays  to  be  dismissed 
hr-nce  with  his  reasonable  costs. 

Attorney  for  Defendant. 

Georgia, County. 

Personally    came   before   the    undersigned    attesting   officer, 


CONSTABLES  367 

,  the  subscriber,  who  being  duly  sworn,  on 

oath  says  that  the  facts  and  things  set  out  in  the  foregoing 
petition,  are  true. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


J.  P. 


Allegation  of  consideration  necessary  in  suit  on  executory  simple  con- 
tract; must  be  alleged  with  reasonable  explicitness.  145/461,  470 
(89  S.  B'.  581).  Allegation  that  agreement  was  "valid  and  binding" 
not  sufficient  to  show  consideration.  16  App.  448  (1-a)  (85  S.  E. 
613). 

Failure  of  consideration.  Plea  here  failing  to  aver  that  plaintiff  pur- 
chased note  with  notice  of  failure  of  consideration  properly  stricken 
on  demurrer.  145/494  (1)  (89  S.  E.  613).  Plea  of  total  failure 
includes  plea  of  partial  failure.  17  App.  535  (2)  (87  S.  E.  825). 
Mere  allegation  that  note  is  wholly  without  consideration  amounts 
to  nothing  more  than  plea  of  general  issue,  and  is  too  vague  and 
indefinite  to  constitute  proper  plea.  18  App.  45  (2)  (88  S.  E.  825). 

Illegality  of  consideration  not  proper  matter  for  demurrer  unless  the 
illegality  thereof  affirmatively  appears  in  instrument,  or  from  alle- 
gations of  petition.  16  App.  432,  435  (85  S.  E.  622). 

Want  of  consideration  not  proper  matter  for  demurrer  unless  the  ille- 
gality thereof  affirmatively  appears  in  instrument,  or  from  allega- 
tions of  petition.  16  App.  432,  435  (85  S.  E.  622).  Plea  here 
sufficiently  charged,  in  absence  of  special  demurrer,  that  note  was 
without  consideration.  13  App.  392,  393  (6)  (79  S.  EL  237).  Plea 
admitting  that  part  of  services  for  which  note  was  given  and  cash 
consideration  paid  were  in  fact  rendered  by  plaintiffs  failed  to  show 
entire  absence  of  consideration;  necessary  to  allege  that  services 
were  entirely  worthless.  16  App.  297  (85  S.  E.  205). 


CONSTABLES.     §§4680-4697. 


BOND  OF  CONSTABLE.    §§4691-4693. 


Georgia, County. 

We,   ,  as  principal,  and 

and ,  as  sureties,  acknowledge  ourselves  held 

and  bound  unto ,  Ordinary  of  said  county, 

and  his  successors  in  office,  in  the  sum  of  five  hundred  dollars*, 
for  the  payment  of  which  we  hereby  bind  ourselves,  our  heirs, 
executors  and  administrators,  jointly  and  severally,  and  oach  of 
us  for  himself  and  family  hereby  waives  and  renounces  all  rights 


368  CONSTABLES 

to  homestead  or  exemption  under  the  Constitution  or  laws  of 
this  State,  as  against  this  obligation.  The  condition  of  this 
bond  is  such,  that  if  the  said  principal  obligor  shall  faithfully 
discharge  the  duties  of  his  said  office  as  constable  of  said  county 

to  which  office  he  was,  to  wit,  on  the day  of , 

19.  .  .  .,  duly  elected  (or  appointed),  during  the  time  of  his 
continuance  in  office,  as  required  by  law,  then  this  bond  to  be 
void,  else  of  force. 

Witness  our  hands  and  seals  this day  of ,  19 ... 

Principal   [L.  S.] 

Security     [L.  S.] 

Security     [L.  S.] 

Executed  in  presence  of 


Filed  in  office,  examined  and  approved  this. day 

of ,  19 


[*NOTE. — $200.00  for  constables  outside  of  incorporated  towns.   §4691.] 


Bond  payable  to  commissioners  of  roads  and  revenues  of  Fulton  County 
was  made  to  proper  payees.    141/345,  346  (80  S.  E.  1001). 


OATH  OF  CONSTABLE.    §4689. 


Georgia, County. 

I, ,  do  swear  that  I  will  duly  and  faithfully 

perform  all  the  duties  required  of  me  as  constable  of  the  county 
of according  to  the  best  of  my  ability  and  under- 
standing. 

I  do  further  swear  that  I  am  not  the  holder  of  any  public 
money  due  this  State,  unaccounted  for;  that  I  am  not  the  holder 
of  any  office  of  trust  under  the  government  of  the  United  States, 
nor  of  either  of  the  several  States,  nor  of  any  foreign  State; 
and  that  I  am  otherwise  qualified  to  hold  said  office  according 
to  the  Constitution  of  the  United  States  and  the  Constitution 
and  laws  of  Georgia;  that  I  will  support  the  Constitution  of 
the  United  States  and  of  this  State.  So  help  me  God. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

,    Ordinary. 


CONSTABLES  369 

SERVICE  BY  CONSTABLE. 


Served  the  defendant,   ,  personally  with  a 

copy  of  the  within  summons.    This day  of ,  19 ... 

, ,  L.  C. 

Served  the  defendant, ,.' ,  by  leaving  a  copy 

of  the  within  at  his  usual  and  most  notorious  place  of  abode. 

This day  of ,19 

,  L.  C. 


ENTRY  OF  NULLA  BONA. 


Due  search  made  and  no  property  found  upon  which  to  levy 
the  within  fi.  fa. 

This day  of ,  19 

' ,  L.  C. 


ENTRY  OF  CONSTABLE  BEFORE  LEVYING  ON  LAND. 


Due  search  made  and  no  personal  property  found  sufficient 
to  satisfy  the  within  execution. 

This day  of ,  19 

,  L.  C. 


LEVY  BY  CONSTABLE  ON  LAND  WHERE  THERE  Is  No  PERSONAL 

PROPERTY. 


Georgia, County. 

There  being  no  personal  property  of  the  defendant  to  be 
found  in  this  county  sufficient  to  satisfy  this  fi.  fa.,  I  have  this 
day  levied  the  same  on  [describe  the  land  levied  on],  as  the 

property  of  defendant,  and  given ,.  .,  the  person 

in  possession,  written  notice  of  said  levy  as  required  by  law. 

This day  of ,  19 

,  Constable. 


[NOTE. — After  making  the  levy  on  land,  the  constable  must  turn  over 
the  fi.  fa.  and  notice  to  the  sheriff,  for  further  procedure.] 


370  CONSTABLES 

NOTICE  OF  LEVY. 


Georgia,  .  .  .  . County. 

To : 

YQ.U  are  hereby  notified  that  I  have  this  day  levied  a  fi.  fa. 

issued  from  the  justice's  court,  of  the district,  G.  M., 

of  said  county,  in  favor  of against , 

on  [describe  the  land  as  in  the  entry  of  levy],  as  the  property 
of  the  defendant,  and  have  turned  over  the  fi.  fa.  and  notice  to 
the  sheriff  of  said  county,  and  said  land  will  be  by  him  sold  at 

the  time  and  place  required  by  law.     This., day 

of ,  19 

,  Constable. 


[NOTE. — The  person   in   possession  of  the   land   levied  on,  must  be 
served  with  the  above  notice  within  five  days  after  the  levy  is  made.] 


LEVY  ON  SHAKES  OF  STOCK.     §§6035,  6036. 


Levied  the  within  fi.  fa.  upon shares  of  the  capital 

stock  of  the , as  the  property  of  the  defendant, 

and  notice  of  the  same  given  to ,  president. 

"Property  pointed  out  by  plaintiff   (or  plaintiff's  attorney)." 

This day  of ,  19 

,  L.  C. 


[NOTE. — All  entries  of  levies  upon  property,  both  real  and  personal, 
should  particularly  describe  it,  and  show  that  it  was  levied  on  as  the 
property  of  defendant.] 


CONSTABLE'S  SALE. 


Georgia, County. 

Will  be  sold  on  the day  of.  . ,  19.  .  .  ., 

between  the  usual  hours  of  sale,  at., ,  the  regular 

place  of  holding  the  justice  court  in  and  for  the 

district,  G.  M.,  of  said  county,  the  following  described  property, 

to  wit :    

levied  on  as  the  property  of.  .  .  ., to  satisfy  a 

issued  from  the  justice's  court  aforesaid,  in  favor  of 

This day  of ,19 

,  L.  C. 


CONSTABLES  371 

COSTS  AND  FEES  OF  CONSTABLE.    §§6004-6006. 


(See  Costs  and  Fees,  post,  p.  384.) 


RULE  AGAINST  CONSTABLES.     §§4657,  5354. 


Georgia, County. 

To  the  Superior  Court  of  said  County : 

brings  this1  petition  against , 

a  lawful  constable  of ,.  .district,  G.  M.,  of  said  county, 

and  alleges  the  following  facts:  , 

1 is  a  lawful  constable  of district, 

G.  M.,  of  said  county,  and  was  such  on  the day  of 

.-,  10.-.. 

2.  On  said day  of , ,  19.  .  .  .,  a  certain 

fi.  fa.  in  favor  of vs for 

dollars  principal, dollars  interest,  and., 

dollars  cost  of  suit,  lately  issued  from was  placed  in 

the  hands  of  the  said ,  as  constable  as  aforesaid, 

for  the  purpose  of  levying  the  same,  and  collecting  the  money 
due  thereon,  and  said  fi.  fa.  has  ever  since  continuously  been  in 
the  hands  of  said  constable. 

3.  That  on  the day  of ,  19 ,  the 

said , received  and  collected  in  his  official  capacity 

as  constable  the  sum  of dollars,  being  the  principal, 

interest  and  costs  due  on  said  fi.  fa. 

4.  That  said ,  constable  as  aforesaid,  has 

hitherto  wholly  neglected  and  refused  to  pay  over  to  petitioner 
or  his  attorney,  the  sum  so  collected  as  aforesaid. 

5.  That  on  the day  of ,  19.  . .  .,  peti- 
tioner's attorney  made  formal  and  legal  demand  in  writing  upon 

the  said ,  constable,  to  pay  over  the  money  so 

collected  by  him  in  his  official  capacity  as  aforesaid  and  to  which 

your  petitioner  was  lawfully  entitled,  but  the  said 

refused  to  pay  over  the  same,  or  any  part  thereof,  and  still  doth 
refuse  and  neglect  to  do  so. 

Wherefore,  petitioner  prays  a  rule  nisi  directed  to  the  said 

requiring  him  to  show  cause,  if  any  he  has,  why 

he  should  not  pay  petitioner  the  money  due  on  said  fi.  fa.,  or 
why  in  default  thereof  he  should  not  be  attached  for  contempt. 

Petitioner's  Attorney. 


372  CONSTABLES 

DEMAND.     §5343. 


Georgia, County. 

To ,  Constable  of  the District,  G.  M. : 

I  hereby  make  demand  upon  yon  for  the  money  collected  by 

you  upon  a  certain  fi.  fa.  in  my  favor  against for 

dollars  principal,    . .  . dollars  interest, 

and dollars  costs,  issued  from  the term, 

19 .  .  .  . ,  of  the court  of  said  county,  or  else  take  notice 

that  I  shall  claim  of  you  twenty  per  cent,  per  annum  thereon 
from  this  date,  until  so  paid,  and  pray  an  attachment  for  con- 
tempt to  issue  against  you  as  provided  by  law. 

This day  of ,  19 


AFFIDAVIT  AS  TO  SERVICE.     §5344. 


Georgia, County. 

Personally  comes. . .1 ,  who,  being  duly  sworn, 

deposes  and  says  that  at.  .  .  ., in  said  county,  on  the 

day  of ,  19 .  . .  . ,  he  did  personally  serve 

,  constable  of  the district,  G.  M.,  of 

said  county,  with  a  written  demand  of  which  the  foregoing  is 
a  copy. 

Sworn  to  and  subscribed  before  me  this 
.....  .day  of ,  19 


EULE  NISI.    §5346. 


The  foregoing  petition  against ,  constable  of 

the , district,  G.  M'.,  of  said  county,  read  and 

considered.     Ordered  that  the  said show  cause  as 

prayed  before  the  Superior  Court  of  said  county  on  the 

day  of ,  19 

Let  a  copy  of  said  petition  and  of  this  order  be  served  upon 

said forthwith.     This day  of , 

19.... 

,  J.  S.  C..  ..C. 


CONSTABLES  373 

RULE  ABSOLUTE.     §5347. 


I   Rule.     In Superior  Court, 

term,  19 


The  defendant  in  the  above  stated  case,  having  been  duly 
served  with  a  copy  of  the  petition  filed  in  this  case  and  of  the 
rule  nisi  thereon,  and  having  failed  to  show  cause  as  required, 
ordered  that  the  said  rule  be  made  absolute,  and  that  he  pay  to 
the  plaintiff  instanter  the  amount  due  on  said  fi.  fa.,  to  wit, 

dollars,  and  that  on  failure  to  do  so  he  be  subject 

to  execution  or  an  attachment  for  contempt  as  provided  by  law. 

This day  of ,  19 

,  J.  S.  C..  ..C. 


[NOTE. — A  constable  may  be  ruled  by  the  judges  of  the  Superior 
Courts,  ordinaries,  and  justices  of  the  peace,  upon  application,  either  in 
term  time  or  vacation,  as  provided  in  §5346.] 


ATTACHMENT  FOR  CONTEMPT.     §5350. 


Georgia,  .  .  .  ., County. 

To  the  Sheriff  of  said  County  and  his  Lawful  Deputies: 

A  rule  absolute  having  at  the term,  19.  . .  .,  of 

the court  of  said  county,  held  on  the day  of 

,  19 .  .  .  . ,  been  granted  against , 

constable  of  the district,  G.  M.,  of  said  county, 

requiring  him  to  pay  over   (instanter)   to or 

his  attorney,  the  sum  of dollars,  principal,  the 

sum  of dollars,  interest  to  the  date  of  said  rule, 

and  the  further  sum  of dollars,  costs,  or  in  default 

that  he  be  attached,  and  he  having  made  default: 

These  are,  therefore,  to  command  you  to  arrest  the  body  of 

said constable  as  aforesaid,  and  commit  him 

to  the  jail  of  said  county,  there  to  be  confined  and  safely  kept, 
without  bail,  until  he  purge  himself  of  the  contempt  aforesaid, 
by  paying  over  the  aforesaid  sums  of  money  (with  twenty  per 

cent,  interest  thereon)  to  the  said .  .  .or  his  lawful 

attorney.     Witness  the ,  judge  of  said  court. 

This  the day  of ,19 

,  Clerk. 


374  CONTINUANCE 

CONTINUANCE.     §§5710-5727. 


AFFIDAVIT  TO  CONTINUE  ON  ACCOUNT  OF  ABSENCE  OF  WITNESS. 


In  order  that  there  may  be  no  mistake  as  to  the  facts,  it  is 
sometimes  better  to  make  a  motion  for  a  continuance  by  pre- 
senting the  facts  in  an  affidavit.     In  such  case,  the  following 
may  be  used  as  a  form : 
Georgia, County. 

JOHN  DOE          \    Complaint  on  note  in Superior 

vs.                  f       Court. 
RICHARD  ROE      J    Term,  19 .... 

Before  me,  the  undersigned  attesting  officer,  personally  came 
Richard  Roe,  who,  being  duly  sworn,  on  oath  says,  that  he  is 
the  defendant  in  the  above  named  and  stated  case,  and  that  he 
is  not  ready  for  trial  therein  on  account  of  the  absence  of 
William  Jones,  who  resides  in  said  county  and  who  has  been 
subpo3naed ;  that  he  expects  to  prove  by  said  witness  that  on 

the day  of ,  19 .  .  .  . ,  before  the  filing  of 

said  suit,  he  paid  to  the  plaintiff,  John  Doe,  on  said  note  the 
sum  of  fifty  ($50.00)  dollars  in  cash,  and  that  no  other  person 
was  present  at  the  time  of  said  payment  except  plaintiff  and 
defendant  and  the  said  William  Jones,  and  affiant  has  no  other 
witness  by  whom  he  can  show  this  fact,  and  that  he  has  pleaded 
this  payment  as  a  credit  on  said  note,  and  that  said  evidence  is 
material;  that  said  witness  is  not  absent  by  the  permission, 
directly  or  indirectly,  of  affiant;  affiant  expects  to  obtain  the 
testimony  of  said  witness  at  the  next  term  of  this  court,  and 
that  this  application  is  not  made  for  the  purpose  of  delay,  but 
for  the  purpose  of  enabling  affiant  to  obtain  the  testimony  of 
said  absent  witness,  and  affiant  makes  this  affidavit  for  the  pur- 
pose of  making  a  showing  for  a  continuance  in  said  case. 

RICHARD  ROE. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 

J.  P. 


CONTINUANCE  375 

AFFIDAVIT  FOR  CONTINUANCE  ON  ACCOUNT  OF  ILLNESS  OF 

COUNSEL. 


(State  the  case.) 

Before  me,  the  undersigned  attesting  officer,  personally  came 
Richard  Roe,  who,  being  duly  sworn,  on  oath  says  that  he  is  not 
ready  for  trial  in  the  above  named  and  stated  case,  on  account 

of  the  absence  of ,  who  is  his  leading  counsel 

in  said  case ;  that  said is  at  this  time  suffering 

from  an  attack  of  pneumonia  and  is  unable  to  attend  this  court 
at  this  term,  and  affiant  says  that  he  can  not  go  safely  to  trial 
without  the  service  of  said  absent  counsel  and  he  expects  the 
services  of  his  said  counsel  at  the  next  term  of  this  court,  and 
affiant  further  says  that  this  application  for  continuance  is  not 
made  for  the  purpose  of  delay  only. 

RICHARD  ROE. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


J.  P. 


AFFIDAVIT  FOR  CONTINUANCE  ON  ACCOUNT  OF  THE  ILLNESS 

OF  THE  PARTY. 


(State  the  case  as  above.) 

Before  me,  the  undersigned  attesting  officer,  personally  came 

,  who,  being  duly  sworn,  on  oath  says  that  he 

is  a  practising  physician  and  as  such  has  been  in  attendance 
upon  Richard  Roe  for  the  last  ten  days ;  that  he  saw  Richard 
Roe  this  morning  and  that  at  this  time  said  Richard  Roe  is 
confined  to  his  bed  with  an  attack  of  pneumonia  and  is  unable 
on  account  of  his  condition  to  attend  court,  and  will  be  unable 
to  attend  court  for  the  next  fifteen  days;  affiant  makes  this 
affidavit  to  be  used  on  a  showing  for  continuance  in  the  above 
named  and  stated  case. 

Sworn  to  and  subscribed  before  me,  this 
the. .      . .dav   of..  19. . 


J.  P. 


(NOTE:     In  addition  to  this  affidavit,  counsel  for  defendant  must  state 
in  his  place:     "I  state  in  my  place  that  I  am  attorney  for  Richard  Roe, 


376  CONTRACTORS 

the  defendant  in  the  case  of  John  Doe  vs.  Richard  Roe,  complaint 
pending  in  this  court,  and  the  defendant  is  sick  and  unable  to  attend 
court,  as  is  shown  by  the  affidavit  of  Dr herewith  pre- 
sented, and  I,  as  attorney  for  Richard  Roe,  can  not  go  safely  to  trial 
in  said  case  without  the  presence  of  Richard  Roe,  the  defendant." 
Where  an  affidavit  is  made  for  the  purpose  of  continuance,  it  does  not 
deprive  the  other  side  of  the  right  to  swear  and  cross-examine  the  party 
making  the  affidavit  on  oath  as  to  the  facts  set  forth  in  the  affidavit  if 
he  is  present  in  court.) 


CONTRACTORS. 


MECHANIC'S  CLAIM  OF  LIEN  ON  REAL  ESTATE.     §3353. 


Georgia, County. 

The  undersigned, ,  a  mechanic,  claims  a 

^ien  upon  a  certain  building  and  the  real  estate  connected  there- 
with, said  house  and  premises  heing' described  as  follows:  (de- 
scribe house  and  premises),  and  owned  by , 

and  situated  in  said  county.  Said  lien  is  claimed  for  carpenter's 
work  done  by  the  undersigned  upon  said  building.  The  amount 

for  which  the  undersigned  claims  this  lien  is  $ 

And  now,  within  three  months  since  the  completion  of  the  work, 
the  undersigned  asserts  his  lien  therefor  and  records  the  same 
in  the  office  of  the  clerk  of  the  superior  court  of  the  county 
where  said  property  is  situated,  as  aforesaid,  pursuant  to  law. 


PETITION  TO  FORECLOSE  LIEN  ON  REAL  ESTATE. 


Georgia, County. 

To  the  Superior  Court  of  Said  County: 

as,  plaintiff,  brings  this  complaint  against 

.  .  . ,  as  defendant,,  and  alleges : 

1.  Defendant  is  a  resident  of  said  county. 

2.  On  the day  of ,.  .,   19 ,  plaintiff, 

in  consideration  of dollars,  to  be  paid  to  him  by 

defendant,  upon  the  completion  of  the  contract,  contracted  with 
the  defendant   (for  building,  repairing,  or  improving,  or  for 
materials  or  machinery  put  up  or  furnished,  as  the  case  may 
be),  upon  certain  real  estate  in  said  county  belonging  to  de- 


CONTRACTS  377 

fondant,  a  copy  of  which  contract  is  hereto  attached  and  marked 
"Exhibit  A,"  as  a  part  of  this  petition.  Said  building  and  real 
estate  may  be  described  as  follows: 

3.  Plaintiff  substantially  complied  with  his  said  contract,  as 

above  set  forth,  and  finally  completed  the  same  on  the 

day  of ,  19 .  .  .  . ,  whereupon  said  sum  of 

dollars  became  due  and  payable. 

4.  Plaintiff  claims  a  lien  upon  said  real  estate  for  said  sum 

of dollars,  and  shows  that  within  three  months 

from  the  completion  of  his  said  contract  aforesaid,  he  recorded 
his  claim  of  lien  upon  said  real  estate,  as  required  by  .law,  in 

the  office  of  the  clerk  of  the  Superior  Court  of .  .  . county, 

a  copy  of  which  is  attached  hereto  and  marked  "Exhibit  B,"  as 
part  of  this  petition. 

5.  And  now,   within   twelve  months   after  his   said   claim 
aforesaid  became  due,  plaintiff  brings  this  action  for  the  amount 
thereof. 

Wherefore  he  prays: 

(1)  A  general  judgment  against  defendant  for  the  amount 
of  his  said  debt  aforesaid;  (2)  and  a  special  judgment  against 
said  real  estate  setting  up  said  lien  for  the  amount  of  his  said 
debt. 

(3)      (Add  the  usual  prayer  for  process.) 

Petitioner's  Attorney. 


CONTRACTS.     §§4216-4402. 


(NOTK:  Every  contract  that  is  worth  making  should  be  put  in  writing 
and  made  in  duplicate  so  that  each  party  can  have  a  copy  of  it.  This 
prevents  any  misunderstanding  or  dispute  as  to  its  terms.) 


GENERAL  FORM  OF  CONTRACT. 


Georgia, ,.  .County. 

This  contract,  made  and  entered  into  this day 

of ,  19 .  .  .  . ,  between ,  party  of 

the  fir.- 1   |>arl,  and ,  party  of  the  second  part, 

both  parties  of  said  State  and  county,  witnesseth : 


378      -  CONTRACTS 

That  the  said  party  of  the  first  part  for  and  in  consideration 

of  the  sum  of  $ (here  set  out  exactly  what  the  party  of 

the  first  part  undertakes  to  do). 

And  the  said  party  of  the  second  part  hereby  agrees  as  follows : 
(Here  set  out  what  the  other  party  undertakes  and  agrees  to  do.) 

This  contract  and  agreement  is  made  in  duplicate,  and  each 
duplicate,  it  is  agreed,  shall  be  original  evidence  of  the  contract. 

In  witness  whereof  said  parties  have  hereunto  set  their 
hands  and  affixed  their  seals,  the  day  and  year  first  above  written. 

'. (L.  S.) 

(L.  S.) 


(NOTE:  In  a  contract  of  this  kind,  where  there  can  be  no  dispute  as 
to  the  signature,  it  is  more  convenient  not  to  have  any  witness,  for  the 
reason  that  if  it  is  to  be  put  in  evidence,  it  would  have  to  be  proved 
by  the  witness,  whereas  one  of  the  parties  to  it  could  prove  the 
execution  independent  of  a  witness:  However,  if  the  contract  is  im- 
portant, the  safe  rule  would  be  to  have  it  executed  in  the  presence  of 
a  justice  of  the  peace  or  notary  public.) 


SIIOET  FORM  OF  CONTRACT. 


Georgia, County. 

This  contract  made  this  the .....  day  of ,  19 .  .  .  . , 

between and ,  is  as  follows : 

(Here  state  fully  the  contract  and  agreement  made.  It  had 
better  be  too  full  than  not  to  be  full  enough.  The  main  rule  is, 
to  set  out  the  facts  as  to  what  is  agreed  to  by  each  party.) 

This*  contract  is  made  in  duplicate  and  each  duplicate  it  is 
agreed  shall  be  original  evidence  of  the  contract. 

In  witness  whereof  said  parties  have  hereunto  set  their  hands 
and  affixed  their  seals  the  day  and  year  first  above  written. 

(L.  S.) 

(L.  S.) 


Plea  of  non  est  factum  must  be  verified.  142/48,  49  (3-a)  (82  S.  E.  441). 
Attorney  of  defendant  who  does  not  reside  in  county  may  make  oath 
to  plea  of  non  est  factum  to  best  of  his  knowledge  and  belief. 
143/396  (84  S.  E'.  965);  17  App.  126  (1)  (86  S.  E.  455).  Execution 
of  instrument  sued  on  need  not  be  proved,  unless  denied  by  plea  of 
non  est  factum.  17  App.  648  (4)  (87  S.  E.  1090). 


CORPORATIONS — COSTS  AND  FEES  379 

CORPORATIONS. 


CHARTERS. 
(See  ante,  pp.   344-355.) 


PLEA  OF  NUL  TIEL  CORPORATION. 


(State  the  case.) 

And  now  comes  the  defendant  in  the  above  stated  case,  and 
for  plea  says : 

1.  That  said  case  is  proceeding  in  the  name  of , 

and  that  there  was  not  at  the  commencement  of  this  action,  nor 

is  there  now  any  such  corporation  as  the ,  named 

as  plaintiff  in  the  petition. 

2.  Defendant  avers  that  plaintiff  was  not  a  de  facto  corpora- 
tion, nor  did  the  persons  claiming  to  compose  the  alleged  cor- 
poration, at  the  commencement  of  this  action,  nor  at  any  of  the 
times  named  in  plaintiff's  petition  claim  in  good  faith  to  be  a 
corporation. 

Wherefore,  defendant  prays  judgment  of  the  said  action,  and 
that  the  same  be  dismissed. 

And  of  this  he  puts  himself  upon  the  country. 


Paper  purporting  to  be  charter  of  alleged  corporation  and  attached  to 
defendant's  plea  can  not  be  considered  as  proof  of  incorporation, 
unless  tendered  in  evidence  and  admitted  for  that  purpose.  18 
App.  128  (1)  (88  S.  E.  921). 


COSTS  AND  FEES.     §§5980-6017  (c). 


FEES  OF  CLERKS  OF  SUPERIOR  COURT.     §5995. 


§5995.  (5397).  The  clerks  of  the  superior  courts  of  this 
State  shall  be  entitled  to  charge  and  collect  the  following  fees 
for  official  duties  performed  by  them,  to  wit: 

For  filing  and1  docketing  suit $2  00 

For  copying  and  issuing  process , 2  00 


380  COSTS  AND  FEES 

For  each  copy  after  first  copy $  50 

For  entering  verdict  or  judgment  on  minutes 2  00 

For  filing  all  pleas  in  any  case 50 

For  recording   proceedings   in  civil   cases,   per  hundred 

words 15 

For  issuing  fi.  fa , 50 

For  entering  fi.  fa.  on  execution  docket 25 

For  each  subprena  issued , 15 

For  writ  of  partition  of  land  and  recording  proceedings 

in  the  case , 5  00 

For  exemplification  of  record,  per  hundred  words 15 

For  recording  articles  of  partnership  under  law  regulat- 
ing limited  partnership 5  00 

For  recording  incorporation  of  joint-stock  or  any  other 

incorporated  company ,. 5  00 

For  proceeding  to  forfeit  charter .  10  00 

For  furnishing  and  certifying  any  process,  order,  etc., 

for  publication 1  00 

For  recording  liens  and  mortgages  and  deeds,  per  hun- 
dred words 15 

For  trials  of  nuisances  and  recording  proceedings 5  00 

For  issuing  commissions  to  examine  witness 1  00 

For  recording  any  instrument  or  writing  not  specified, 

per  one  hundred  words , 15 

For  recording  each  homestead  of  personalty,  per  one  hun- 
dred words   15 

For  recording  each  petition  of  realty  and  personalty,  per 

one  hundred  words , 15 

For  recording  plat  of  homestead 1  00 

For  each  certificate  of  record  of  homestead 50 

For  every  foreclosure  of  mortgage  on  personalty,  whole 

service , 3  00 

For  every  foreclosure  of  mortgage  on  realty,  whole  service  6  00 

For  every  claim  case 3  00 

For  every  illegality  case ,.  .    3  00 

For  every  certiorari  case  (covers  all  services,  117/519; 

43  S.  E.  850) 3  00 

For  docketing  each  motion 50 

For  recording  motions,  per  hundred  words 15 

For  every  rule  versus  sheriff  or  other  officer,  whole  service  3  00 

For  every  appeal  case,  whole  service ,,,,,..,,,    3  00 


COSTS  AND  FEES  381 

For  every  appeal  case,  settled  before  verdict $1  50 

For  recording  and  copying  proceedings  in  equitable  pro- 
ceedings and  bills  of  exceptions  to  the  Supreme  Court, 

per  one  hundred  words 15 

For  issuing  writ  of  injunction  in  equity 3  00 

For  entering  remittitur  from  Supreme  Court 1  00 

For  certificate  and  seal,  each 50 

For  scire  facias  to  make  parties , , 1  50 

For  each  copy   1  00 

For  recording  order  on  minutes,  each 75 

For  issuing  jury  scrip,  each 10 

For  inspection  of  books,  when  their  aid  is  required 25 

For  each  day's  service  in  attending  upon  the  court 3  00 

For  change  of  name,  recording  proceedings 5  00 

For  examination  of  record  and  abstract  of  result 1  50 

For  declaration  of  intention  to  become  a  citizen  of  the 

United  States , 2  50 

.For  recording  and  taking  oath  to  become  a  citizen,  upon 

minutes,  including  certificate  of  naturalization ....  2  50 


FEES  OF  SHERIFF.     §5997. 


"§5997.     (5401).    The  sheriffs  of  this  State  shall  be  entitled 
to  charge  and  collect  the  following  fees  for  official  duties  per- 
formed by  them,  to  wit : 
For  serving  copy  of  a  process  and  returning  original,  per 

copy $2  00 

If  suit  for  another  county,  to  be  paid  in  advance ...    2  00 

For  summoning  each  witness , 50 

For  summoning  jury  and  attending  trial  to  assess  dam- 
ages for  right  of  way.  .  ., 5  00 

For  service  in  every  case  before  a  jury 1  25 

For  each  levy  on  fi.  fa 2  00 

For  search  and  return  of  nulla  bona 1  00 

For  serving  summons   of  garnishment,   or  rule   against 

garnishee < 1  00 

If  more  than  one,  for  each  additional  copy 1  00 

For  summoning  jury  to  try  case  of  nuisance.  .  •. ....;..    3  50 
For  summoning  juries  at  each  term  of  Superior  Court.  .10  00 


382  COSTS  AND  FEES 

For  commissions  on  sales  of  property,  on  sums  of  fifty 
dollars  or  less,  5  per  cent.  On  excess  above  fifty 
dollars  up  to  five  hundred  and  fifty  dollars,  2^  per 
cent.  For  all  sums  exceeding  five  hundred  and  fifty 
dollars,  on  excess,  l1/^  per  cent.  No  commission  shall 
be  charged  unless  property  is  actually  sold. 

For  making  out  and  executing  titles  to  land $3  50 

If  presented  by  purchaser 1  00 

For  executing  bill  of  sale  to  personal  property,  when  de- 
manded by  purchaser , 1  00 

For  forthcoming  bonds   1  00 

For  executing  process  against  tenant  holding  over,  or  in- 
truder upon  land  to  dispossess  him 3  50 

For  taking  and  returning  counter-affidavit  when  summary 

process  to  dispossess  tenant  or  intruder  is  resisted .  .    2  00 
For  settling  each  execution  in  his  hands,  settled  without 

sale    2  00 

For  settling  execution  from  justice's  court 1  00 

For  keeping  a  horse  or  mule,  per  day , 50 

For  keeping  each  head  of  cattle,  per  day 15 

For  keeping  each  head  of  sheep,  hogs,  or  goats,  per  day.        05 

For  levying  an  attachment 2  00 

For  following  property  out  of  county  with  attachment, 

for  every  mile  going  and  returning.  ...,.., 05 

For  attendance  on  superior  courts,  not  to  exceed  twenty 

days  per  annum,  per  day  (112/132 ;  37  S.  E.  120)  .    5  00 

For  each  day  more  than  twenty 2  00 

For  attendance  on  courts  of  ordinary,  per  day 2  00 

For  attendance  at  elections  as  required  by  law,  per  day  ..200 
The  per  diem  for  attendance  on  courts  and  elections,  and 
service  in  summoning  jurors,  shall  be  paid  by  the  county." 


FEES  OF  JUSTICES  OF  THE  PEACE  AND  NOTARIES  PUBLIC,  WHO 
ABE  Ex-OrFicio  JUSTICES.     §6002. 


"§6002.  (5403.)  Fees  of  justices  of  the  peace,  etc.  The 
following  shall  be  the  fees  for  justices  of  the  peace,  and  notaries 
public : 

For  each  original  summons $     35 

For  affidavit  and  bond  to  obtain  attachment,  and  issuing 

the  attachment  .  1  70 


COSTS  AND  FEES  383 

For  entering  up  judgment  in  each  case $     35 

For  trial  of  case  when  same  is  litigated. .  .  ., 35 

For  issuing  each  execution 35 

For  affidavit  to  obtain  possessory  warrant  and  making  out 

the  same   1  25 

For  trying  same    2  00 

For  making  out  interrogatories  and  certifying  same.  ...  1  25 

For  making  out  recognizance  and  returning  same  to  court  35 

For  each  subpoena  for  witness 15 

For  each  search  warrant  issued 75 

For  each  affidavit  when  there  is  no  case  pending 30 

For  answering  every  writ  of  certiorari  to  superior  court .  50 
For  presiding  at  a  trial  of  forcible  entry  or  detainer,  or 

both,  each  trial 1  00 

For  presiding  at  a  trial  for  right  of  way 1  00 

For  issuing  a  rule  to  establish  lost  papers. 35 

For  trying  the  same 35 

For  presiding  at  trial  of  nuisance 1  00 

For  witnessing  any  paper 25 

For  affidavit  and  bond  to  obtain  garnishment 75 

For  issuing  summons  of  garnishment 30 

For  each  additional  copy  of  garnishment 10 

For  settling  cases  before  judgment 25 

For  claim   affidavit  and  bond 50 

For  trying  same , 35 

For  certifying  transcript,  same  fee  as  clerk. 

For  entering  an  appeal  to  the  superior  court 50 

For  each  distress  warrant 75 

For  taking  testimony  in  criminal  cases 1  25 

For  issuing  order  to  sell  perishable  property 25 

For  each  lien  foreclosed  and  placed  on  docket 1  00 

For  entering  appeal 30 

For  drawing  jury  and  making  out  list 30 

For  each  case  tried  by  said  jury 30 

For  issuing  commissions  to  take  interrogatories 50 

For  bail-trover  affidavit,  summons  and  trial 1  25 

For  backing  fi.  fa 35 

For  rule  nisi  vs.  officer 35 

For  trying  the  same 35 

For  judgment  on  same 35 


384  COSTS  AND  FEES 

For  attachment  for  contempt  against  officer  of  court  for 
failure  to  comply  with  any  lawful  order  or  process 
of  the  court $  50 

For  issuing  warrant  to  dispossess  intruders  or  tenants 

holding  over 1  75" 


FEES  OF  CONSTABLES.     §6004. 


"§6004.  ( §5404. )  The  fees  of  constables  shall  be  as  follows : 

For  serving  a  warrant,  or  attachment $  50 

For  serving  each  additional  copy 30 

For  copying  and  serving  each  original  summons 35 

For  summoning  each  witness 30 

For  attending  court,  for  each  judgment  rendered  by  a 

justice  of  the  peace  or  notary  public 35 

For  attending  each  trial  on  a  day  different  from  regular 

court  day 35 

For  levying  fi.  fa.  and  advertising • 35 

For  settlement  of  fi.  fa.  when  property  is  sold 30 

For  return  of  nulla  bona 30 

For  summoning  jury  in  inquest 1  00 

For  collecting  execution  issued  by  coroner 75 

For  keeping  a  horse,  mule,  ass,  or  ox  per  day 50 

For  each  head  of  neat  cattle,  per  day 15 

For  each  head  of  sheep,  goats  or  hogs,  per  day 05 

For  all  sales  made  by  him,  amount  on  sales 6*4 

For  attending  grand  jury,  per  day 1  00 

For  serving  warrant  in  criminal  cases 1  25 

For  keeping  and  maintaining  prisoner  before  examination 

not  exceeding  twenty-four  hours 75 

For  serving  rule  to  establish  lost  papers 35 

For  every  additional  copy  30 

For  following  property  with  attachment  out  of  county, 

going  and  returning,  per  mile 05 

For  levying  each  distress  warrant 50 

For  taking  bond  in  civil  cases 50 

For  taking  bond  in  criminal  cases 1  00 

For  executing  search  warrant 75 

For  serving  garnishee 35 

For  each  additional  copy 25 


DECLARATIONS  OR  PETITIONS  385 

For  summoning  jury    • $  ~  50 

For  attending  trial  on  appeal 30 

For  executing  warrants  against  intruders  or  tenants  hold- 
ing over 1  25" 


JUDGMENT  FOR  COSTS. 


vs. 


Court, 

Term,  19 


The  above  case  having  been ....  .by  the 

.  .  .in  said  case,  it  is  ordered  and  adjudged  by 

the  court  that  the do  have  and  recover  of  and 

from  the ,.  .for  use  of  officers  of  court,  the  sum 

of dollars,  for  costs  in  said  case. 


Judge , 


DECLARATIONS  OR  PETITIONS. 


COMMENCEMENT  OF  PETITIONS. 


INFANT  SUING  BY  NEXT  FRIEND. 


, ,  as  next  friend  of ,  an 

infant  under  twenty-one  years  of  age,  as  plaintiff,  brings  this 

suit  against  the Company,  a  corporation  of 

said  State  and  county,  as  defendant,  and  respectfully  shows: 

1.  That 

2.  That  . 


PARTNERS  SUING  PARTNERS. 


and ,  partners  trading 

under  the  name  of &   ,  as 

plaintiffs,  bring  this  suit  against and 


386  DECLARATIONS  oft  PETITIONS 

,  of  said  county,  doing  business  under  the1 

name  of i  &  ..  ^  ...... . ,  as  defendants^ 

and  show  to  the  court: 

1.        That .;,.....;.;,....;....,  v  .;....:.; 

2i     Tnat  .,;>.-....  


k  , . .  k ,  as  executor  of  the  estate  of .  .  .  . , , 

deceased,  as  plaintiff,  brings  this  suit  against , 

of  said  county,  as  defendant,  and  shows  to  the  court: 

1.  That 

2.  That  . 


SUIT  OF  ADMINISTRATOR  WITH  WILL,  ANNEXED. 


,  as  administrator,  with  the  will  of 

., ,  deceased,  annexed,  of  all  and  singular  the 

goods  and  chattels  of  the  said ,  deceased,  as 

plaintiff,  brings  this  his  petition  against ,  of 

said  county,  as  defendant,  and  respectfully  shows  to  the  court: 

1.  That 

2.  That  . 


SUIT  BY  ASSIGNEE  OF  CHOSE  IN  ACTION. 


,  suing  for  the  use  of , 

assignee,  plaintiff,  brings  this  his  petition  against , 

of  said  county,  as  defendant,  and  shows  to  the  court : 

1.  That 

2.  That  . 


SUIT  BY  GUARDIAN. 


,. .,  as  guardian  of ,  as 

plaintiff,  brings  this  his  petition  against '. , 

of  said  county,  as  defendant,  and  shows  to  the  court: 

1.  That 

2.  That  . 


DECLARATIONS  OR  PETITIONS  387 

SUIT  BY  RECEIVER, 


1 ,  plaintiff,  was  on  the day 

of ,  19.  .  .  .,  appointed  temporary  receiver  of  the 

Company,  a  corporation  organized  under  the 

laws  of  said  State,  and  having  a  place  of  business  in  said  county, 
and  he  now  has  in  his  possession,  custody  and  control  the  assets 
of  said  corporation. 


SUIT  AGAINST  RAILROAD-  COMPANY. 


Georgia, County. 

To  the  Superior  Court  of  said  County: 

,  as  plaintiff,  brings  this  his  complaint 

against  the  Southern  Railway,  as  defendant,  and  shows  to  the 
court : 

1.  That  said  Southern  Railway  is  a  railroad  corporation, 
and  owning  and  operating  a  line  of  railroad  running  through 
said  county,  and  has  an  agent  and  office  for  the  purpose  of 
transacting  business  in  said  county. 

2.  That  defendant  has  injured  and  damaged  plaintiff  in 

the  sum  of dollars  by  reason  of  the  following 

facts,  to  wit: 

3.  That 

4.  That 

Wherefore,  plaintiff  prays  that  process  issue  directed  to  said 

Southern  Railway  requiring  it  to  be  and  appear  at  the  next 
term  of  the  Superior  Court  of  said  county,  then  and  there  to 
answer  petitioner's  complaint. 

Petitioner's  Attorney. 


DOMESTIC  CORPORATION  SUED. 


shows  that is  a  corpora- 

.tion  organized  under  the  laws  of  said  State,  and  having  its 
principal  office  and  place  of  business  in  said  county  of 


Amendment.  Where  plaintiff  was  designated  as  "Farmers  &  Merchants 
of  B."  petition  was  amendable  by  inserting  the  word  "Bank,"  so 
as  to  make  it  read  "Farmers  &  Merchants  Bank  of  B."  145/163 
(88  S.  E.  973). 


388  DECREES — DEEDS 

Caption.  It  Is  generally  recognized  that  petition  must  contain  title  or 
caption  (the  terms  being  synonymous),  and  that  the  title  or  caption 
shall  include  the  name  of  the  court  in  which  the  case  is  to  be  tried, 
the  county  in  which  the  action  is  brought,  and  the  name  of  the 
parties.  The  caption  is  a  part  of  the  petition.  18  App.  190,  191 
(89  S.  E.  169),  281  (89  S.  E.  344). 

City  court.  Amendment  here  inserting  words  "of  Sparta"  in  first  line 
of  petition,  so  that  it  should  read,  "To  the  city  court  of  Sparta,  of 
said  county,"  was  not  error.  18  App.  317  (1)  (89  S.  E.  344). 

Demurrer,  petition  to  be  subject  to,  must  be  entirely  lifeless.  16  App. 
813  (1)  (86  S.  E.  455).  Special  demurrer  goes  to  structure  merely, 
and  it  must  distinctly  and  particularly  specify  wherein  defect  lies. 
18  App.  159  (88  S.  E.  995). 

Description  of  party.  As  against  appropriate  demurrer,  suit  brought 
in  name  which  imports  neither  natural  person  nor  corporation,  nor 
partnership,  is  mere  nullity.  14  App.  106  (1)  (80  S.  E.  294);  18 
App.  533  (89  S.  E.  1054).  See  15  App.  142  (4)  (82  S.  E.  784). 

Dismissal.  Where  petition  shows  on  its  face  that  no  legal  judgment 
can  be  rendered  thereon,  motion  to  dismiss  it  may  be  entertained 
at  any  time  before  verdict.  17  App.  59  (1)  (86  S.  E.  272). 

Form  of  action.  Not  necessary  that  plaintiff,  in  his  petition,  classify 
his  form  of  action.  14  App.  147,  149  (80  S.  E.  519). 

Knowledge  and  belief.  Allegation  of  certain  material  facts  as  true 
"to  the  best  of  the  plaintiff's  knowledge  and  belief"  is  not  proper 
allegation  in  common-law  pleading.  143/762,  763  (4)  (85  S.  E.  922). 

Paragraphs.  Petition  not  paragraphed  would  evidence  such  disregard 
of  requirements  of  law  that  same  should  be  dismissed  on  motion. 
Petition  which  makes  paragraph  of  every  sentence,  without  refer- 
ence to  substance,  would  also  evidence  such  disregard  of  spirit  of 
law  that  it  should  be  dismissed.  True  course  lies  between  these 
two  extremes.  119/667  (46  S.  E.  853);  18  App.  618  (1)  (90 
S.  E.  88). 

Signature.  Where  petition  is  unsigned,  defect  may  be  cured  by  amend- 
ment. 141/493,  495  (81  S.  E.  223). 


DECREES. 

(See  Judgments  and  Decrees,  post.) 


DEEDS.     §§4179-4215. 


ATTESTATION  OF  DOMESTIC  DEED. 


'Signed,  sealed  and  delivered  in  the  presence  of" 


Notary  Public,  county  of.,. 
State  of. . 


DEEDS  389 

ACKNOWLEDGMENT  BY  MAKER  OF  EXECUTION  OF  DEED. 


Georgia, County. 

Personally  came  before  me,  the  undersigned  attesting  officer, 

,  the  subscriber,  who  being  duly  sworn,  on 

oath  says  that  he  is  the  maker  of  the  foregoing  and  hereto 
attached  deed,  that  he  made  and  executed  the  same  at  the  time 

and  place  as  it  purports,  and  that and 

then  and  there  signed  said  deed  as  witnesses, 

and  affiant  delivered  said  deed  at  said  time  to  the  grantee  as 
recited  in  the  attestation. 

Sworn  to  and  subscribed  before  me,  this 
the..      ..dav  of..  ,  19.. 


J.  P. 


Attorney  at  law  prosecuting  to  judgment  suit  upon  note,  payment  of 
which  is  secured  by  conveyance  by  debtor,  does  not  thereby  become 
incompetent  as  attesting  witness  to  deed  executed  in  pursuance  of 
statute  and  reconveying  to  debtor  property  for  purpose  of  levy  and 
sale  under  such  judgment  and  execution  based  thereon.  141/329 
(80  S.  E.  996).  Where  person  in  individual  capacity  was  one  of 
two  grantors,  and  in  capacity  as  trustee  of  church  was  one  of  the 
grantees,  his  attestation  as  justice  of  the  peace  of  such  deed,  along 
with  unofficial  witness,  was  not  sufficient  to  authorize  deed  to  be 
recorded.  144/845  (1)  (88  S.  E.  199).  Although  deed  may  not  be 
properly  attested  or  probated  to  authorize  its  record,  nevertheless 
this  will  not  prevent  it  from  conveying  title  as  against  grantor  and 
his  heirs.  145/215  (1)  (88  S.  E1.  947).  Attestation  is  requisite  to 
prepare  deed  for  record,  but  deed  without  witnesses  is  good  as  con- 
veyance between  the  parties.  91/577  (3)  (18  S.  E.  830);  87/85 
(13  S.  E.  216);  104/230  (30  S.  E.  802). 


CERTIFICATE  or  CLERK  TO  NOTARY'S  AUTHORITY. 


(Deed  executed  out  of  State.) 

State  of ,  County  of .  . 

I, ,  clerk  of  the .court  in  and  for 

said  county,  and  under  which  the  notary  hereinafter  named 

holds  his  appointment,  (or,  I,  .  .- ,  the  Secretary 

of  State  of State  or  Territory,  where  the  notary 


390  DEEDS 

holds  his  appointment  under  the  Governor)  do  hereby  certify 

that .,  by  and  before  whom  the  foregoing 

acknowledgment  was  taken,  was  at  the  time  of  taking  the  same, 

a  notary  public  in  and  for  the  county  of ,  State 

aforesaid,  regularly  commissioned  and  authorized  by  law  to 
attest  deeds  and  take  acknowledgments  thereof. 

Witness  my  hand  and  official  seal  this day  of , 

19....  

Clerk Court County, 

[Clerk's  Seal]  State  of 


CEKTIFICATE  OF  CLEKK  TO  XOTARY'S  AUTHORITY. 


(Notarial  act  in  State.) 

State  of ,  County  of 

I, ,  clerk  of  the court  for  the 

county  of .  .  .  ., ,  State  of ,  said  court  being 

a  court  of  record,  do  hereby  certify  that  the  above  signature, 

purporting  to  be  the  signature  of ,  a  notary 

public  in  and  for  the  county  of ,  State  of , 

is  the  true  and  genuine  signature  of  the  said , 

and  at  the  time  of  the  attestation  of  the  foregoing  deed  by  him. 
he  was  a  notary  public  for  said  State  and  County,  authorized 
to  attest  deeds. 

Clerk, Court, County. 


[NOTE. — Where  the  official  witness  attesting  the  deed  is  a  judge  of  a 
court  of  record  his  official  character  should  appear  under  his  name,  and 
the  clerk  of  the  court  of  which  he  is  judge  fehould  attach  his  certificate 
and  the  seal  of  such  court,  of  the  genuineness  of  the  signature  of  such 
judge.  In  which  case  the  form  of  the  clerk's  certificate  should  be  as 
follows:] 


CLERK'S  CERTIFICATE  TO  SIGNATURE  OF  JUDGE. 


State  of ,  County  of 

I, ,  clerk  of  the court,  for  the 

county  pf ,  State  of ,  said  court  being 

a  court  of  record,  do  hereby  certify  that  the  above  signature, 


DEEDS  391 

purporting  to  be  the  signature  of ,  a  judge  of 

the  mun    afoi'oaid,  is  the  true  and  genuine  signature  of  the 

said ,  and  that  he  is  judge  of  said  court. 

Witness  my  hand  and  official  seal.  .  .  .day  of 19.  ... 

Clerk  of  the., Court  of 

[Clerk's  Seal]  County,  State  of 


PROBATE  OF  WITNESS. 


Georgia, County.. 

Personally  before  the  undersigned,  a  justice  of  the  peace  in 

and  for  said  county,  came ,  who  on^oath  says, 

that   lie  saw sigflj  seal  and  deliver  the  within 

deed,  for  the  purpose  therein  mentioned,  that  deponent  sub- 
scribed the  same  as  a  witness  in  presence  of  said , 

and  he  saw  said do  so  likewise. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


POWER  OF  ATTORNEY  TO  EXECUTE  DEED. 


Georgia, County. 

Know  all  men  by  these  presents  that  I, ,  of 

the  said  State  and  county,  for  divers  good  causes  and  considera- 
tions me  hereunto  moving,  have  made,  ordained  and  appointed, 

and  by  these  presents  do  make,  ordain  and  appoint , 

of  said  State  and  county,  my  true  and  lawful  attorney ;  for  me 
and  in  my  name  and  for  my  own  proper  use  and  benefit,  to 
[here  state  fully  and  particularly  the  object  for  which  the  power 
of  attorney  was  made].  And  to  have,  use  and  take,  all  lawful 
ways  and  means,  in  my  name,  or  otherwise,  that  may  be  found 
necessary  or  proper,  in  the  execution  of  this  power  of  attorney. 
To  do  all  the  lawful  acts  and  things  whatsoever,  concerning  the 
premises,  as  fully  in  every  respect  as  I  myself  might  or  could 
do  were  I  personally  present  at  the  doing  thereof;  hereby  ratify- 
ing and  confirming,  and,  by  these  presents,  allowing  whatsoever 


392  DEEDS 

my  said  attorney  shall,  in  my  name,  lawfully  do  or  cause  to  be 
done,  in  and  about  the  premises,  by  virtue  of  these  presents. 
In  witness  whereof  I  have  hereunto  set  my  hand  and  affixed 

my  seal,  this day  of ,  19 .... 

[L.S.] 

Signed,  sealed  and  delivered  in  presence  of 


(NOTE:     When  a  deed  of  conveyance  of  realty  is  executed  under  a 
power  of  attorney,  the  attorney  should  sign  thus: 

By.".'.'.'.'.'.'.'.'.'.. .''.'.'.'.'.'''.'.'.'.'.'.'..'.'....' .'.'..[L.    S.] 

(His  attorney  in  fact.) 

The  power  of  attorney  should  be  attached  to  the  deed  and  recorded 
with  it.) 


WABRANTY  DEED.— I.     (§4193-4197. 


Georgia, County. 

This  indenture,  made  this day  of ,  19.  .  ., 

between ,  of  the  county  of ,  of 

the  first  part,  and ,  of  the  county  of , 

of  the  second  part, 

Witnesseth,  That  the  said  part.  .  of  the  first  part  for  and  in 

consideration  of  the  sum  of dollars,  in  hand  paid, 

at  and  before  the  sealing  and  delivery  of  these  presents,  the 
receipt  whereof  is  hereby  acknowledged,  ha.  .  granted,  bar- 
gained, sold,  and  conveyed,  and  by  these  presents  do.  .  grant, 
bargain,  sell,  and  convey,  unto  the  said  part.  .  of  the  second 

part, heirs  and  assigns,  all  that  tract  or  parcel  of  land 

lying  and  being  in  the  county  of ,  State  of 

To  have  and  to  hold  the  said  bargained  premises,  together 
with  all  and  singular  the  rights,  members  and  appurtenances 
thereof,  to  the  same  being,  belonging  or  in  anywise  appertaining 

to  the  only  proper  use,  benefit  and  behoof  of 

the  said  part.  .  of  the  second  part,  heirs,  executors 

and  administrators  in  fee  simple. 

And  the  said  part.  .  of  the  first, heirs,  executors  and 

administrators,  the  said  bargained  premises  unto  the  said  part.  . 
of  the  second  part heirs,  executors,  administrators  and 


DEEDS  393 

assigns,  against  said  part.  .    of  the  first  part,    heirs, 

executors  and  administrators,  and  all  and  every  other  person  or 
persons  shall  and  will  warrant  and  forever  defend  by  virtue  of 
these  presents. 

In  witness  whereof,  The  said  part .  .  of  the  first  part  ha ... 

hereunto  set hand .  .   and  affixed seal, 

the  day  and  year  first  above  written. 

[SEAT.] 

[SEAT.] 

Signed,  sealed  and  delivered  in  presence  of 


WARRANTY  DEED. — II. 


Georgia,    County. 

This  indenture,  made  this day  of 

in  the  year  of  our  Lord,  one  thousand,  nine  hundred  and , 

between ,  of  the  county  of ,  State 

of ?  of  the  first  part,  and ,  of 

the  county  of ,  State  of ,  of  the 

second  part,  witnesseth : 

That  the  said  part .  .  of  the  first  part,  for  and  in  consideration 

of  the  sum  of dollars  in  hand  paid  at  or  before 

the  sealing  and  delivery  of  these  presents,  the  receipt  whereof 
is  hereby  acknowledged,  ha.  .  granted,  bargained,  sold,  aliened, 
conveyed  and  confirmed,  and  by  these  presents  do.  .  grant, 
bargain,  sell,  alien,  convey  and  confirm  unto  the  said  part .  .  of 

tlifi  second  part, heirs  and  assigns, 

all  that  tract  or  parcel  of  land, 

situated,  lying  and  being  in 

(The  important  thing  in  the  drawing  of  a  deed  is  to  fully  and 
particularly  describe  the  land  conveyed,  so  as  to  identify  it,  and 
so  that  any  one  may  take  the  deed  and  go  and  locate  the  land 
from  the  description  therein.) 

To  have  and  to  hold  the  said  bargained  premises,  with  all 
and  singular  the  rights,  members  and  appurtenances  thereof  to 
the  same  being,  belonging,  or  in  anywise  appertaining,  to  the 
only  proper  use,  benefit  and  behoof  of  the  said  part.  .  of  the 

second  part, heirs,  executors,  administrators  and  assigns, 

in  fee  simple;  and  the  said  part.  .  of  the  first  part  for 

heirs,  executors  and  administrators,  the  said  bargained  premises, 


394  DEEDS 

unto  the  said  part.  .  of  the  second  part, heirs,  executors, 

administrators  and  assigns,  against  the  part.  .  of  the  first  part, 

/ heirs,  executors,  administrators  and  assigns,  and  all  and 

every  other  person  or  persons,  whatsoever,  shall  and  will  warrant 
and  forever  defend  by  virtue  of  these  presents. 

In  witness  whereof,  the  said  part.  .   of  the  first  part,  ha.  . 

hereunto  set hand.  .,  affixed seal.  .,  and  delivered 

these  presents  the  day  and  year  first  above  written. 

(SEAL) 

(SEAL) 

(SEAL) 

Signed,  sealed  and  delivered  in  presence  of: 


QUIT  CLAIM  DEED. 


Georgia, County. 

This  indenture,  made  this day  of ,  19.  .  .  ., 

between of-  the  county  of ,  of 

the  first  part,  and ,  of  the  county  of , 

of  the  second  part : 

Witnesseth,  That  the  said of  the  first  part, 

for  and  in  consideration  of  the  sum  of dollars, 

in  hand  paid,  the  receipt  whereof  is  hereby  acknowledged,  ha.  . 
bargained,  sold,  and  by  these  presents  do.  .  remise,  release  and 

forever  quit  claim  to  the  said ,  heirs  and 

assigns,  all  the  right,  title,  interest,  claim  or  demand  the  said 

has  or  may  have  had  in  and  to 

[describe  the  land] With  all  the  rights,  members 

and  appurtenances  to  the  said in  any  wise 

appertaining  or  belonging. 

To  have  and  to  hold  the  said to  the  said 

so  that  neither  the  said 

nor heirs,  nor  any  other  person  or  persons  claiming 

under ,  shall  at  any  time,  by  any  means,  or 

ways,  have,  claim  or  demand  any  right  or  title  to  the  aforesaid 
,  or  its  appurtenances,  or  any  rights  thereof. 


DEEDS  395 

In1  witness  whereof,  the  said ha .  .  hereunto  set 

hand .  .   and  affixed seal,  on  the  day  and 

year  first  above  written. 

[SEAL] 

[SEAL] 

[SEAL] 

Signed,  sealed  and  delivered  in  presence  of 


DEED  OF  GIFT. 


Georgia, County. 

This  indenture  made  this day  of ,  19.  . .  . , 

between and ,  ooth  of  the 

County  and  State  aforesaid. 

Witnesses  that  the  said for  and  in  considera- 
tion of  the  sum  of  five  dollars  and  of  the  natural  love  and 

affection  has  for (his  son)  said 

hereby  gives,  grants  and  conveys  to  the  said 

heirs  and  assigns,  the  following 

property,  to  wit: 


in  said  county,  together  with  all  the  rights  and  privileges  there- 
unto belonging  forever,  in  fee  simple. 

In  witness  whereof  the  said hereunto  set 

hand  and  seal,  the  day  and  year  above  written. 

...: ' EL.  s.] 

Signed,  sealed  and  delivered  in  presence  of: 


,J.P. 


EXECUTOR'S  DEED  UNDER  PUBLIC   SALE. — I. 


Georgia, County. 

Pursuant  to  the  last  will  and  testament  of , 

late  of  said  county,  deceased,  after  public  notice  made  in  the 

newspaper,  published  in  the  city  of ; 

on  the  first  Tuesday  in (being  the day  of 

said  month),  19.  .  .  .,  I, ,  duly  constituted 


39,6  DEEDS 

executor  of  the  last  will  and  testament  of  said '.  .  . , 

deceased,  did  put  up  and  expose  to  sale,  to  the  highest  bidder, 

at ,  in  said  county,  between  the  legal  hours  of 

sale,  the  lot  of  land  described  below.  When , 

of  said  county,  being  the  highest  and  best  bidder,  said  lot  of 

land  was  knocked  off  to  him,  at  and  for  the  price  of 

dollars. 

Now,  therefore,  this  indenture,  made  and  entered  into  this 

day  of ,  19 .  .  .  . ,  between  said 

executor,  as  aforesaid,  of  the  one  part,  and  said , 

of  the  other  part,  witnesseth,  that  for  and  in  consideration  of 

the  sum  of.  .  .  . dollars,  cash  in  hand  paid  (at  and 

before  the  sealing  and  delivery  of  these  presents,  the  receipt 

whereof  is  hereby  acknowledged),  said ,  executor, 

as  aforesaid,  hath  granted,  bargained,  sold  and  conveyed,  and 
by  these  presents,  doth  grant,  bargain,  sell  and  convey  (so  far 

as  the  office  of  executor  authorizes  him)  unto  the  said , 

his  heirs  and  assigns,  all  that  lot  of  land,  situate,  lying  and 
being  [describe  the  land  conveyed],  with  all  the  rights,  mem- 
bers and  appurtenances  to  said  lot  of  land,  in  anywise  apper- 
taining or  belonging. 

To  have  and  to  hold  said  lot  of  land,  unto  him,  the  said 

,  his  heirs  and  assigns,  in  the  same  manner 

in  which  it  was  possessed  and  held  by  the  said , 

deceased. 

In  testimony  whereof  the  said ,  executor, 

as  aforesaid,  hath  hereunto  set  his  hand  and  affixed  his  seal,  the 
day  and  vear  above  written. 

[L.  S.] 

As  Ex'r  of  the  estate  of ,  Dec. 

Signed,  sealed  and  delivered  in  presence  of: 


,  J.  P. 


EXECUTOR'S  DEED  UNDER  PUBLIC  SALE. — II. 


Georgia, County. 

This  indenture  made  this  the day  of , 

in  the  year  of  our  Lord,  nineteen  hundred  and , 

between ,  as  executor  of  the  estate  of . , 

late  of  said  county,  deceased,  and ,  of  said 

county,  witnesseth ; 

That  whereas,  party  of  the  first  part  is  the  duly  qualified 


DEEDS  397 

executor  of  the  estate  of ,  late  of  said  county, 

deceased,  and  by  the  terms  of  the  will  of  the  said  deceased,  he 
was  given  authority  to  sell  and  dispose  of  the  real  estate  of  said 
estate,  either  at  public  or  private  sale,  and  party  of  the  first 
part,  deeming  it  advisable  to  sell  the  same  at  public  sale,  and 
in  pursuance  of  law  did  advertise  said  land  once  a  week  for 

four  weeks  previous  to  the  first  Tuesday  in ,  19.  . .  ., 

in  the ,  as  is  required  for  sheriff's  sale,  and.  on 

said  first  Tuesday  in ,  19.  .  .  .,  between  the  legal 

hours  of  sale,  party  of  the  first  part  did  expose  the  land  herein- 
after described  for  sale  at  public  outcry,  at  which  time 

was  the  highest  bidder  at  and  for  the  price  of 

dollars,  and  said  land  was  then  and  there  knocked 

off  to  the  said at  said  price  as  the  purchaser 

of  said  land,  all  of  which  was  done  by  the  said  party  of  the  first 
part  in  pursuance  of 'his  power  under  said  will. 

Now  therefore,  party  of  the  first  part,  for  and  in  considera- 
tion of  the  sum  of dollars  to  him  in  hand  paid, 

at  and  before  the  delivery  of  these  presents,  the  receipt  whereof 
is  hereby  acknowledged,  has  granted,  bargained,  sold  and  con- 
veyed, and  by  these  presents  does  grant,  bargain,  sell  and  con- 
vey, unto  the  said ,  party  of  the  second  part, 

his  heirs  and  assigns, 

All  that  tract  or  parcel  of  land,  situate,  lying  and  being  in 

the  county  of ,  and  known  on  the  plan  or  map  of 

said  county  as  lot  of  land,  Number in-  the 

district  and section  of  said  county,  containing  forty 

(40)  acres,  more  or  less,  together  with  all  the  rights,  members 
and  appurtenances  to  said  lot  of  land,  in  anywise  appertaining 
or  belonging. 

To  have  and  to  hold  the  said  lot  of  land  unto  him,  the  said 

.  .,  his  heirs  and  assigns,  as  fully  and  completely 

and  in  the  same  manner  in  which  it  was  possessed  and  held  by 
the  said ,  deceased. 

In  testimony  whereof,  the  said ,  executor 

as  aforesaid,  hath  hereunto  set  his  hand  and  affixed  his  seal,  the 
day  and  vear  above  written. 

(L.  S.) 

As  executor  of  the  estate  of ,  deceased. 

Signed,  sealed  and  delivered  in  the  presence  of: 


J.  P. 


398  DEEDS 

EXECUTOR'S  DEED  AT  PRIVATE  SALE  UNDER  AUTHORITY 
CONTAINED  IN  WILL. — I. 


Georgia, County. 

This  indenture,  made  and  entered  into  this day 

of ,  19....,  between ,  as 

executor  of  the  last  will  and  testament  of , 

late  of  said  county,  deceased,  party  of  the  first  part,  and 

,  part .  .  of  the  second  part,  of  the  county 

of ,  State  of 

Witnesseth,  That  the  said  party  of  the  first  part,  by  virtue  of 
the  power  and  authority  vested  in  him  by  said  will  (which  has 
been  duly  probated  and  recorded  in  said  county)  : — 

Now,  therefore,  the  said  party  of  the  first  part,  in  considera- 
tion of  the  premises  and  for  the  further  consideration  of  the 

sum  of dollars,  to.  him  in  hand  paid,  at  and 

before  the  sealing  and  delivering  of  these  presents,  the  receipt 
whereof  is  hereby  acknowledged,  has  granted,  bargained,  sold 
and  conveyed,  and  hereby  does  grant,  bargain,  sell  and  convey 

unto  the  said  part.  .  of  the  second  part,  heirs  and 

assigns,  the  following  described  tract  or  parcel  of  land  lying 


and  being  in, 


To  have  and  to  hold  the  same,  together  with  the  rights,  mem- 
bers and  appurtenances  thereunto  belonging,  or  in  anywise 

appertaining,  to said  part .  .  of  the  second 

part own  proper  use,  benefit  and  behoof  forever,  in 

as  full  and  as  ample  a  manner  as  the  same  was  possessed  or 
enjoyed  by  the  said ,  deceased,  in  his  lifetime. 

In  witness  whereof,  The  said  party  of  the  first  part  has  here- 
unto set  his  hand  and  seal,  the  day  and  year  first  above  written. 

[SEAL] 

[SEAL] 

Signed,  sealed  and  delivered  in  presence  of: 


EXECUTOR'S  DEED  AT  PRIVATE  SALE  UNDKR   AUTHORITY 
CONTAINED  IN  WILL. — II. 


Georgia, County. 

This  indenture,  made  the day  of ,  19.  .  .  ., 


DEEDS  390 

between ,  as  the  executor  of  the  last  will  and 

testament  of ,   late  of  said   county,   deceased 

(said  executor  being  authorized  by  said  will  to  sell  land,  herein- 
after described,  of  said  deceased,  at  private  sale),  and 

of  the  county  and  State  aforesaid,  Witnesses,  that  for  and  in 

consideration  of  the  sum  of dollars,  to  him  in 

hand  paid,  as  executor  as  aforesaid,  does  hereby  sell  and  convey 

unto  the  said ,  his  heirs  and  assigns,  a  certain 

tract  of  land,  the  same  being  the  property  of  the  estate  of  said 
deceased,  and  situated  in  said  county,  to  wit :  [here  describe 

the  land]   containing acres,  more  or  less.     To  have 

and  to  hold  the  said  premises  nnto  the  said , 

his  heirs  and  assigns,  in  as  complete  a  manner  as  said  deceased 
had  and  held  the  same.  In  witness  whereof,  the  said  executor 
has  hereunto  set  his  hand  and  seal,  the  day  and  year  first"  above 
written. 

; [L.S.] 

Signed,  sealed  and  delivered  in  the  presence  of: 

,'  J.'R 


DEED  TO  WILD  LANDS  SOLD  BY  ADMINISTRATOR  AT  PRIVATE 

SALE. 


Georgia, County. 

This  indenture,  made  the day  of ,  19.  .  .  ., 

between ,  as  the  duly  constituted  administrator 

of  the  estate  of ,  late  of  said  county,  deceased, 

and Witnesseth,  that  in  pursuance  of  an  order 

of  the  court  of  ordinary  of  said  county,  authorizing  said  admin- 
istrator to  sell  at  private  sale  certain  wild,  uncultivated  lands, 
hereinafter  described,  belonging  to  the  estate  of  said  deceased, 
that  said  administrator,  for  and  in  consideration  of  the  sum  of 

dollars,  to  him  in  hand  paid  as  said  administrator, 

does  hereby  sell   and  convey  unto  the  said , 

his  heirs  and  assigns,  a  certain  tract  or  lot  of  land,  the  same 
being  wild  and  uncultivated  lands,  and  the  property  of  said 

deceased,  lying  in county,  State  aforesaid,  to  wit: 

[here  describe  the  laud],  containing acres,  more  or 

less.     To  have  and  to  hold  said  lands  to  him,  the  said , 

his  heirs  and  assigns,  in  as  complete  a  manner  as  said  deceased 
had  and  held  the  -ame. 


400  DEEI>S 

In  witness  whereof  the  said  administrator  has  hereto  set  his 
hand  and  seal  the  day  and  year  first  above  written. 

[L.  S.] 

As  Administrator  Estate  of ,  Deceased. 

Signed,  sealed  and  delivered  in  presence  of: 


,  J.   P. 


GUARDIAN'S  DEED. 


Georgia, County. 

This  indenture,  made  the day  of ,  19.  .  .  ., 

between .  . ,  as  guardian  for , 

and  . 

Witnesses,  that,  in  pursuance  of  an  order  of  the  court  of 

Ordinary  of  said  county,  regularly  granted  at  the 

term,  19.  .  .  .,  of  said  court,  authorizing  said  guardian  to  sell 
certain  real  estate  of  his  said  ward ;  the  said  guardian  legally 

advertised  for  sale,  on  the  first  Tuesday  in ,  19.  .  .  ., 

in  the ,  a  newspaper  published  in  said  county,  in 

which  sheriff's  sales  are  published,  the  tract  or  parcel  of  land 
hereinafter  described,  as  the  property  of  said  ward,  and  on 

the day  of ,  19 .  .  .  . ,  within  the  legal  hours 

of  sale,  he  exposed  said  lands  for  sale  at  the  court-house  door  in 
said  county  according  to  law,  when  the  same  was  bid  off  by  the 

said ,  he  being  the  highest  and  best  bidder,  at 

and  for  the  sum  of dollars. 

Now,  the  said ,  as  guardian  aforesaid,  in 

consideration  of  said dollars  to  him  in  hand 

paid,  does  hereby  sell  and  convey  to  the  said , 

his  heirs  and  assigns,  the  aforesaid  lands,  lying  in 

county,  to  wit:   [describe  the  land],  containing acres, 

more  or  less.  To  have  and  to  hold  said  lands  to  him,  the  said 
,  his  heirs  and  assigns,  in  as  complete  a  man- 
ner as  the  said  ward  had  and  held  the  same. 

In  witness  whereof  the  said ,  as  guardian 

aforesaid,  has  hereunto  set  his  hand  and  seal,  the  day  and  year 
first  above  written. 

[L.  S.] 

As  guardian  of 

Signed,  sealed  and  delivered  in  presence  of: 


,,  J.   P.    . 


DEEDS  .401 

PARTITION  DEED. 


Georgia,  ............  County. 

This  indenture,  made  this  the  ......  day  of  .............. 

19  .  .  .  .  ,   between  ...............  and  .  .  .  .  ...........  ,   both 

of  the  county  and  State  aforesaid. 

Witnesses,  that  the  said  ...................  and  ......... 

bring  tenants  in  common  of  a  certain  tract  of  land,  lying  in 
said  county   [here  particularly  describe  the  land],  containing 
.........  acres,  more  or  less,  and  having  made  partition  of  the 

same  between  themselves,  by  establishing  a  line,  beginning  at 
............  and  running  across  said  land  in  a  [specify  the 

direction]  to  ...............  ,  which  said  line  is  intended  to 

separate  the  respective  interests  of  the  parties  to  this  instrument 
in  said  tract  or  parcel  of  land,  ..................  taking  and 

receiving  all  on  the  south  side  of  said  line,  and  .............. 

taking  and  receiving  all  on  the  north  side  of  said  line.     Now, 
in  consideration  of  the  advantages  each  of  the  parties  to  this 
instrument  is  to  derive  from  the  partition  aforesaid,  the  said 
.................  hereby  releases  and  relinquishes  all  claim 

and  conveys  all  the  right,  title  and  interest  he  has  in  and  to  that 
portion  of  said  tract  of  land  lying  on  the  north  side  of  said  line, 
to  ..............  ,  his  heirs  and  assigns,  forever  in  fee  simple; 

and  the  said  ................  hereby  releases  and  relinquishes 

all  claim,  and  conveys  all  the  right,  title  and  interest  he  has  in 
and  to  that  portion  of  said  tract  of  land  lying  on  the  south  side 
of  said  line,  to  ...............  ,  his  heirs  and  assigns,  forever 

in  fee  simple. 

In  witness  whereof  the  said.  .  .  .  ........  and.  ........... 

have  hereto  set  their  hands  and  seals,  the  day  and  year  above 
written. 


......  .....  .  .....................  [L.   S.] 

Signed,  sealed  and  delivered  in  presence  of: 


,  J.  P. 


TRUST  DEED. 

Georgia, County. 

This  indenture,  made  and  entered  into  this day 

of ,   19 .  . .  . ,  between ,   of  said 


402  DEEDS 

State  and  county,  of  the  one  part,  and ,  of  the 

same  place,  of  the  other  part. 

Witnesseth,  that  for  and  in  consideration  of  the  natural  love 

to  [his  infant  daughter] ,  of  said  State  and 

county and  for  and  in  consideration  of  the 

sum  of  five  dollars,  cash  in  hand  paid  by  said 

at  and  before  the  sealing  and  delivery  of  these  presents,  the  re- 
ceipt whereof  is  hereby  acknowledged,  said hath 

bargained,  sold,  granted  and  conveyed,  and  by  these  presents 

doth  bargain,  sell,  grant  and  convey  unto  the  said 

for  the  use,  benefit  and  advantage,  in  tmst  for  said 

for  life,  for  her  sole  and  separate  use,  and  on  her  decease,  to 
such  child  or  children,  of  representative  of  child  or  children,  as 
she  may  leave  in  life,  to  wit:  all  that  lot  of  land  [describe  the 
land  conveyed],  with  all  the  rights,  members  and  appurtenances 
to  said  lot  of  land  belonging,  or  in  anywise  appertaining. 

To  have  and  to  hold  the  above  described  property  to  him,  the 

said in  trust  for  said and  her 

children,  as  above  specified,  forever. 

In  witness  whereof  the  said hath  hereunto 

set  his  hand  and  affixed  his  seal,  the  day  and  year  above  written. 

' IL.  s.] 

Signed,  sealed  and  delivered  in  presence  of: 


,  J.   P. 


OF  LEVY  BY  SHERIFF. 


Georgia, County. 

To ,  owner  of [describe  the  land] 

in  the district  of  said  county : 

You  are  hereby  notified  that  I  have  this  day  levied  a  fi.  fa. 

issued  from  the court  of in  favor  of 

,  plaintiff,  against ,  defendant, 

upon  the  aforesaid  lot  of  land,  as  your  property.  And  you  are 
further  notified  that  said  lot  of  land  will  be  sold  at  legal  sale 
by  me  on  the  first  Tuesday  in next. 

This day  of , ,  19 .... 

,  Sheriff  [L.  S.] 


DEEDS  403 

SHERIFF'S  DEED. 


Georgia, County. 

This  indenture,  made  this,  the day  of .  . , 

19.  .  .  .,  between ,  sheriff  of  said  county,  and 

,  of  the  county  of 

Witnesses,  that  the  said ,  sheriff  as  afore- 
said, by  virtue  of  an  execution  issued  from  the court 

of  said  county  in  favor  of against .  .  .  ., , 

did  on  the day  of ,  19.  .  .  .,  levy  upon  a 

tract  of  land  lying  in  said  county  of ,  and  herein- 
after more  fully  described  as  the  property  of  the  said ; 

that  he  advertised  said  land,  as  required  by  law-,  for  sale  on  the 

first  Tuesday  in ,  19.  .  .  .,  in  the.  .  . , 

a  newspaper  published  in  said  county  of in  which 

the  sheriff's  advertisements  are  published,  and  that  at  said  time 
he  offered  said  tract  of  land  for  sale,  according  to  law,  when 

the  same  was  bid  off  by ,  he  being  then  and 

there  the  highest  and  best  bidder,  at  and  for  the  sum  of ........ 

dollars. 

Now,  the  said ,  sheriff  aforesaid,  in  con- 
sideration of  the  sum  of dollars,  to  him  in  hand 

paid,  does  hereby  sell  and  convey  unto  the  said , 

his  heirs  and  assigns,  the  said  land,  to  wit:  [here  describe  the 
l?nd],  containing acres,  more  or  less. 

Together  with  all  and  singular  the  rights,  members  and  appur- 
tenances thereof;  and  also  all  the  estate,  right,  title,  interest, 

claim  and  demand  of  the  said in  law,  equity 

or  otherwise,  whatsoever,  of,  in  or  to  the  same: 

To  have  and  to  hold  the  said  premises,  and  every  part  thereof, 

unto  the  said ,  heirs  and  assigns,  in  as  full 

and  ample  a  manner  as  the  said or , 

heirs  and  assigns,  did  hold  and  enjoy,  and  might  have  held  and 
enjoyed  the  same,  had  it  not  been  seized  and  sold  under  the 
execution  aforesaid. 

In  witne-ss  whereof,  the  said ,  sheriff  afore- 
said, hath  hereunto  set  his  hand  and  affixed  his  seal,  the  day 
and  year  first  above  mentioned. 

[L.S.] 

Sheriff  of County. 

Signed,  sealed  and  delivered  in  presence  of: 


404  DEEDS 

SHERIFF'S  TAX  DEED. 


Georgia,  .  .- County. 

Whereas, ,  the  sheriff  of  said  county,  did 

on  the day  of ,  19 .  .  .  . ,  levy  a  writ  of  fieri 

facias,  issued  by ,  tax-collector  of  said  county, 

against ,  for State  and  county  taxes 

for  the  year  19.  ...  upon  that  certain  tract,  parcel  and  lot  of 

land,  and  the  improvements  thereon,  in  said  county  of , 

State  of  Georgia,  to  wit:  [describe  the  land],  levied  upon  as  the 
property  of ,  and  after  due  and  legal  publica- 
tion (as  required  by  law),  being  made  in  the. ,  a 

newspaper  published  in  said  county  of in  which 

sheriff's  sales  are  published,  of  the  sale  of  said  tract,  parcel  and 
lot  of  land  as  above  described,  to  satisfy  the  tax  fieri  facias 

aforesaid,  the  said  sheriff  proceeded  on  the '.  .  .day 

of ,  19 .  . .  . ,  the  same  being  a  day  of  sale,  for  the 

sale  of  the  same  according  to  law,  at  the  court-house  door  in 
said  county,*  when  said  property  was  then  offered  for  sale, 

and ,  being  then  and  there  the  highest  bidder 

at  and  for  the  sum  of dollars 

and cents,  the  said  property  was  then  and  there 

knocked  off  to . 

Now,  this  indenture,  made  and  entered  into,  this  the 

day  of ,  19 .  . .  . ,  between ,  sheriff 

aforesaid  of county,  of  the  one  part,  and , 

of  the  county  of ,  and  State  of ,  of  the 

other  part. 

Witnesseth,  that  for  and  in  consideration  of  the  sum  of 

dollars,  and cents,  cash  to  him  in  hand 

paid  by  said at  and  before  the  sealing  and 

delivery  of  these  presents,  the  receipt  whereof  is  hereby  acknowl- 
edged, the  said ,  sheriff  aforesaid,  has  granted, 

bargained  and  sold,  and  doth  by  these  presents  grant,  bargain 

and  sell  unto  the  said ,  heirs  and  assigns,  (so 

far  as  the  office  of  sheriff  authorizes  him  to  sell)  all  that  tract, 
parcel  and  lot  of  land  in  said  county,  and  the  'improvements 
thereon  «as  above  described. 

To  have  and  to  hold  the  above  granted  premises  unto , 

(*NOTE:     When  execution  is  issued  against  property  not  returned, 
see  §1168.) 


DEEDS  405 

the  said ,  heirs  and  assigns,  in  as  full  and 

ample  a  manner  as  the  same  was  held  and  possessed  by  the 

said when  the  said  property  was  levied  upon 

and  sold. 

In  witness  whereof  the  said ,  sheriff  of 

county  hath  hereunto  set  his  hand  and  affixed  his 

seal,  the  day  and  year  first  above  written. 

[L.S.] 

Sheriff  of  said  County. 

Signed,  sealed  and  delivered  in  the  presence  of: 


LOAN  DEED  WITH  POWER  or  SALE. 
(Shy lock  Form.) 


Georgia, County. 

This  indenture,  made  the day  of ,  19.  .  .  . , 

between ,  of  the  county  of and 

State  of  Georgia,  of  the  first  part,  and ,  of  the 

county  of and  State  of ,  of  the 

second  part: 

Witnesseth,  that  the  said  party  of  the  first  part,  for  and  in 

consideration  of  the  sum  of dollars  in  hand  paid, 

at  and  before  the  sealing  and  delivery  of  these  presents,  the 
receipt  whereof  is  hereby  acknowledged,  has  granted,  bargained, 
sold,  aliened,  conveyed  and  confirmed,  and  by  these  presents 
does  grant,  bargain,  sell,  alien,  convey,  and  confirm  unto  the 

said  party  of  the  second  part heirs  and  assigns,  all  that 

tract  or  parcel  of  land,  situate  in  the  city  of being 

part  of  land  lot  number in  the district 

of county  aforesaid,  and  which  is  bounded  and 

described  as  follows :  Beginning  at 

To  have  and  to  hold  the  said  bargained  premises  with  all  and 
singular  the  rights,  members  and  appurtenances  thereto  apper- 
taining, or  belonging  to  the  only  proper  use,  benefit  and  behoof 

of  the  said  party  of  the  first  part, ,  heirs  and 

assigns,  in  fee  simple ;  and  the  said  party  of  the  first  part  hereby 

covenants  that is  lawfully  sci/.cd  ;m<l  posx— rd 

of  said  property,  and  has  a  good  right  to  convey  it,  and  th;il  it 


406  DEEDS 

is  unencumbered ;  and  the  said  bargained  premises,  the  said 

first  party  and heirs,  executors  and  administrators,  unto 

the  said  party  of  the  second  part, heirs  and  assigns, 

against  the  said  first  party  and  the  heirs,  executors  and  admin- 
istrators of  the  said  first  party  and  against  all  and  every  other 
person  or  persona  shall  and  will  warrant  and  forever  defend. 

This  conveyance  is  made  under  the  provisions  of  the  existing 
Code  of  the  State  of  Georgia,  to  secure  a  debt  evidenced  by  a 
note  of  even  date  herewith,  made  by  the  party  of  the  first  part 
to  order  of  the  party  of  the  second  part,  for  the  principal  sum 

of dollars,  in  gold  coin  of  the  United  States 

of  present  standard  weight  and  fineness  and  due , 

19 ,  with  interest  from  date  at  the  rate  of .  .  .  .per  centum 

per  annum,  evidenced  by certain  interest  notes  or 

coupons  to  said  note  attached  and  which  are  to  mature  at  inter- 
vals of months,  and  to  bear  interest  after  maturity 

at  the  rate  of  eight  per  centum  per  annum;  said  first  party 
taking  the  bond  of  second  party  of  even  date  herewith  for  titles 
back  to  said  first  party  upon  the  payment  of  such  debt. 

And  the  said  party  of  the  first  part  hereby  covenants,  for  so 
long  as  said  indebtedness  or  any  part  thereof  shall  remain  un- 
paid, to  keep  said  premises  in  as  good  condition  as  they  now 
are;  to  pay  all  taxes  and  assessments  that  may  be  liens  upon 
said  premises,  as  they  become  due,  and  to  keep  the  improvements 
on  said  premises  insured  in  company  or  companies  acceptable 
to  said  second  party  against  loss  or  damage  by  fire  or  lightning 

in  the  sum  of  at  least dollars,  with  loss,  if  any, 

payable  to  said  party  of  the  second  part  or  assigns,  as  their 
interest  may  appear ;  and  that  any  tax,  assessment,  or  premium 
of  insurance,  not  paid  when  due  by  the  party  of  tho  first  part, 
may  be  paid  by  the  party  of  the  second  part  or  assigns,  and  any 
sum  so  paid  shall  be  added  to  the  amount  of  said  principal  debt 
as  part  thereof,  shall  draw  interest  from  the  time  of  said  pay- 
ment at  the  rate  of  eight  per  centum  per  annum,  and  shall,  with 
interest,  be  covered  by  the  security  of  this  deed. 

And  said  party  of  the  first  part  hereby  further  covenants  and 
agrees  that  in  case  of  any  default  in  the  due  payment  of  interest 
upon  said  principal  debt  as  and  when  the  same  shall  become 
due,  or  in  the  due  performance  of  any  of  the  covenants  herein 
expressed  to  be  performed  by  the  party  of  the 'first  part,  the  said 
principal  note  together  with  any  and  all  sums  paid  for  account 
of  the  party  of  the  first  part,  in  accordance  with  the  provisions 
above  set  forth,  shall  at  the  option  of  the  party  of  the  second 


DEEDS  407 

part  or  assigns  then  and  thereby  become  and  be  due  and  payable 
forthwith  with  accrued  interest,  and  all  expenses  and  costs  of 
collection,  including  ten  per  centum  of  the  amount  due  as  attor- 
ney's fees,  and  the  amount  of  such  costs,  expenses  and  fees  shall 
be  added  to  the  amount  of  the  debt  hereby  secured  as  part 
thereof,  and  as  such  shall  also  be  covered  by  the  security  of 
this  deed;  time  is  of  the  essence  of  this  contract. 

And  the  party  of  the  first  part  further  covenants  and  agrees 
that  in  case  the  debt  hereby  secured  shall  not  be  paid  when  it 
becomes  due  by  maturity  in  due  course,  or  by  reason  of  a  default 
as  above  provided,  the  party  of  the  second  part  or  assigns  may 
enter  upon  said  premises  and  collect  the  rents  and  profits  thereof, 
and  may  sell  the  said  property  at  auction,  at  the  usual  place  for 

conducting  sales  at  the  court-house  in  the  city  of 

in  said  State,  to  the  highest  bidder,  for  cash,  giving  four  weeks' 
notice  of  the  time,  terms  and  place  of  such  sale  by  advertisement 
once  a  week  in  a  daily  newspaper  published  in  said  city  of 

,.  .all  other  notice  being  hereby  waived  by  said 

party  of  the  first  part  (and  said  second  party,  or  any  person  on 
behalf  of  said  second  party  or  assigns  may  bid  and  purchase  at 
such  sale),  and  thereupon  execute  and  deliver  to  the  purchaser 
at  such  sale  a  sufficient  conveyance  of  said  premises  in  fee  sim- 
ple, which  conveyance  .shall  contain  recitals  as  to  the  happening 
of  the  default  upon  which  the  execution  of  the  power  of  sale 
herein  granted  depends,  and  the  said  party  of  the  first  part 
hereby  constitutes  and  appoints  the  said  party  of  the  second 
part  and  assigns,  the  agent  and  attorney  in  fact  of  said  party 
of  the  first  part  to  make  such  recitals,  and  hereby  covenants 
and  agrees  that  the  recitals  so  to  be  made  by  the  party  of  the 
second  part  or  assigns  shall  be  effectual  to  bar  all  equity  of 
redemption  of  the  party  of  the  first  part  or  the  successors  in 
interest  of  said  first  party,  in  and  to  the  said  premises,  and  the 
party  of  the  second  part  or  assigns  shall  collect  the  proceeds  of 
such  sale,  and  after  reserving  therefrom  the  entire  amount  of 
principal  and  interest  due,  together  with  the  amount  of  any 
taxes,  assessments  and  premiums  of  insurance  theretofore  paid 
by  said  party  of  the  second  part  or  assigns  with  eight  per 
centum  per  annum  thereon  from  date  of  payment,  together  with 
all  costs  and  expenses  of  sale  and  ten  per  centum  of  the  aggre- 
gate amount  due,  for  attorney's  fees,  shall  pay  any  overplus  to 
the  party  of  the  first  part,  or  to  the  heirs  or  assigns  of  said 
first  party. 


408  DEEDS 

And  the  party  of  the  first  part  further  covenants  and  agrees 
that  the  possession  of  said  premises,  during  the  existence  of 
said  indebtedness,  by  the  party  of  the  first  part,  or  any  person 
claiming  under  the  party  of  the  first  part,  shall  be  that  of  a 
tenant  under  the  party  of  the  second  part,  or  assigns  during  the 
due  performance  of  all  the  obligations  aforesaid,  and  that  in 
case  of  a  sale  as  hereinbefore  provided,  the  party  of  the  first 
part,  or  any  person  in  possession  under  the  party  of  the  first 
part,  shall  then  become  and  be  tenants  holding  over  and  shall 
forthwith  deliver  possession  to  the  purchaser  at  such  sale,  or 
be  summarily  dispossessed,  in  accordance  with  the  provisions  of 
law  applicable  to  tenants  holding  over. 

The  power  and  agency  hereby  granted  are  coupled  with  an 
interest  and  are  irrevocable  by  death  or  otherwise  and  are 
granted  as  cumulative  to  the  remedies  for  collection  of  said 
indebtedness  provided  by  law. 

In  witness  whereof,  the  party  of  the  first  part  has  hereto 

set hand  and  seal  the  day  and  year  first  above  written. 

[L.  S.] 

Signed,  sealed  and  delivered  in  presence  of: 


BOND  TO  RECOISTVEY. 


Georgia, County. 

This  indenture,  made  and  executed  this day  of 

,  19 .  .  .  . ,  by  and  between , 

of  the  county  of and  State  of , 

party  of  the  first  part,  and ,  of  the  county 

of and  State  of  Georgia,  party  of  the  second  part: 

Witnesseth,  That  the  said  party  of  the  first  part  is  held  and 
firmly  bound  unto  the  said  party  of  the  second  part  in  the  sum 

of dollars,  binding self heirs, 

executors,  administrators  and  assigns  to  convey  to 

the  second  party heirs  or  assigns,  the  following  described 

real  estate,  to  wit:  All  that  parcel  of  land  lying  and  being  in 

.  being  part  of  the  land  lot  numbered 

in  the district  of county,  in  the  State  of 

Georgia,  and  which  is  bounded  and  described  as  follows:  Begin- 
ning at 


DEEDS  409 

The  payment  of  said  sum  or  the  reconveyance  of  said  property 
being  based  on  the  following  statements,  conditions  and  agree- 
ments, to  wit : 

Whereas,  The  said  party  of  the  second  part  has  borrowed 

from  the  said  party  of  the  first  part,  the  sum  of 

dollars,  and  given  therefor certain  promissory  note, 

Avith  coupons  attached,  bearing  even  date  herewith,  agreeing 

therein  to  pay  .to  said  first  party,  or  order,  the  sum  of 

dollars,  on  the day  of ,  19.  . .  .,  with  interest 

at  the  rate  of per  cent,  per  annum,  as  per  interest  coupons 

to  said  note  attached,  and  payable  in  succession  at  intervals 

of months;  and  further,  that,  in  case  of  default  in 

the  conditions  of  said  note,  the  holder  might  proceed,  as  stated, 
to  collect  the  same  with  ten  per  cent,  of  the  principal  and  inter- 
est as  attorney's  fees,  and  all  costs  of  collection. 

And  whereas,  to  secure  the  payment  of  said  indebtedness,  the 
said  second  party  has  by  deed,  bearing  even  date  herewith,  con- 
veyed to  said  first  party  the  property  heretofore  described. 

Now,  in  consideration  thereof,  the  said  first  party  has  agreed 
and  hereby  for self, heirs,  executors,  admin- 
istrators and  assigns,  does  agree  to  reconvey  to  said  second  party 

heirs  and  assigns,  the  said  premises,  upon  a  full 

compliance  by  said  second  party  with  the  conditions  set  out  in 
said  promissory  note  and  deed,  and  in  this  bond  hereinafter 
generally  referred  to.  The  deed  above  referred  to  and  this  bond 
being  executed  in  reference  to  each  other,  and  to  conform  to  the 
provisions  of  the  existing  Code  of  Georgia,  and  are  to  be  con- 
strued and  enforced  according  thereto.  The  conditions  upon 
which  a  reconveyance  is-  to  be  made  being  substantially  as 
follows : 

First.  That  said  second  party  shall  pay  the  interest  as  stipu- 
lated in  said  note  and  coupons,  and  if  not  so  paid  when  due, 
shall  pay  interest  on  unpaid  interest  from  the  time  it  becomes 
due  until  paid,  at  the  rate  of  eight  per  cent,  per  annum.  All 
payments  in  this  bond  mentioned  or  contracted  to  be  made,  shall 
be  paid  in  gold  coin  of  the  United  States,  of  the  present  standard 
of  weight  and  fineness. 

Second.  That  said  second  party  shall  pay  all  taxes  and 
assessments,  which  shall  be  liens  upon  the  property  herein 
described  when  the  same  becomes  due,  and  if  not  so  paid,  that 
the  said  first  party  or  assigns  may,  without  notice,  declare  the 


410  DEEDS 

whole  sum  of  money  with  interest  due  and  collectible  at  once, 
and  proceed  to  collect  the  same  and  may  pay  such  taxes  or 
assessments  and  collect  the  same  from  said  second  party,  with 
interest  at  eight  per  cent,  per  annum  from  the  time  of  payment, 
and  that  the  amount  so  paid  by  said  first  party  shall  become  a 
part  of  the  said  secured  indebtedness  of  said  second  party. 

Third.  That  said  second  party  shall  keep  all  improvements 
on  said  real  estate  in  as  good  repair  and  conditipn  as  the  same 
are  in  at  this  date,  and  shall  permit  no  waste;  and  further,  shall 
at  second  party's  expense,  until  the  indebtedness  herein  recited 
is  fully  paid  off,  keep  the  buildings  erected  and  to  be  erected  on 

said  lands  insured  in  the  amount  of dollars  in  some 

responsible  insurance  company  or  companies  acceptable  to  said 
first  party,  with  loss,  if  any,  payable  to  said  first  party  or 
assigns;  and  in  the  event  of  a  failure  so  to  insure,  said  first 
party  or  assigns  may  procure  such  insurance,  and  collect  the 
cost  thereof  from  said  second  party,  and  that  the  amount  so 
paid  shall  become  a  part  of  the  said  secured  indebtedness  of 
said  second  party,  and  said  first  party  or  assigns  may  elect,  in 
event  of  such  failure,  to  declare  said  entire  indebtedness  at 
once  due  and  proceed  to  collect  the  same. 

Fourth.  The  said  second  party  shall,  upon  a  failure  to  pay 
either  the  principal  debt  herein  named,  or  interest  thereon  when 
the  same  shall  become  due,  or  to  duly  perform  any  of  the  agree- 
ments or  conditions  above  or  in  said  deed  recited,  and  hereby 
does  give  the  right  to  the  said  first  party,  or  assigns,  without 
notice  to  said  second  party,  or  any  other  party  to  immediately 
proceed  to  enforce  the  collection  of  the  full  amount  of  the  debt 
and  interest,  and  all  costs  of  collection,  including  an  amount 
for  attorney's  fees  equal  to  ten  per  cent,  on  the  debt  then  due, 
and  that  the  property  herein  described  shall  stand  as  security 
therefor — time  being  of  the  essence  of  this  contract — and  upon 
failure  of  said  second  party  to  pay  said  debt  or  interest,  as 
above  contracted,  or  to  comply  with  or  perform  any  of  the  above 
recited  agreements  or  conditions,  then  this  bond  to  be  void,  else 
of  full  force. 

Fifth.  This  bond  shall  not  be  assigned  or  transferred  with- 
out the  consent  in  writing  of  said  first  party. 

Witness  the  hand  and  seal  of  said  first  party  the  day  and 
year  first  above  written. 

IL.S.] 


DEEDS  411 

CANCELLATION  CLAUSE. 


The  loan  referred  to  in  this  deed  has  been  fully  paid,  and  the 

clerk  of  the  Superior  Court  of county  may  enter 

this  cancellation  of  record. 

This day  of ,  19 

[L.S.] 

Executed  in  presence  of 


WARRANTY  DEED  TO  SECURE  LOAN.     §§3306-3310,  6037. 
(Short  Form.) 


Georgia, .  .  County. 

This  indenture,  made  the day  of ,  19.  .  .  ., 

between ,  of  the  county  of and 

State  of ,  of  the  first  part,  and , 

of  the  county  of and  State  of ,  of 

the  second  part. 

Witnesseth,  That  the  said  part.  .  of  the  first  part,  for  and  in 

consideration  of  the  sum  of dollars,  in  hand 

paid,  at  and  before  the  sealing  and  delivery  of  these  presents, 
the  receipt  whereof  is  hereby  acknowledged,  ha.  .  granted,  bar- 
gained, sold,  aliened,  conveyed,  and  confirmed,  and  by  these 
presents  do.  .  grant,  bargain,  sell,  alien,  convey  and  confirm, 

unto  the  said  part.  .  of  the  second  part,  heirs  and 

assigns,  all .  .  [describe  the  land] 

To  have  and  to  hold,  the  said  bargained  premises,  with  all 
and  singular  the  rights,  members  and  appurtenances  thereunto 
appertaining,  to  the  only  proper  use,  benefit  and  behoof  of  the 

said  part .  .  of  the  second  part heirs  and  assigns,  in 

fee  simple;  and  the  said  part.  .  of  the  first  part  hereby  cove- 
nant, .that lawfully  seized  of  said  property, 

and a  good  right  to  convey  it,  and  that  it  is 

uriincumbered,  and  the  said  bargained  premises,  the  said  part .  . 

of  the  first  part  unto  the  said  part,  .of  the  second  part 

heirs  and  assigns,  against  the  said  part.  .  of  Hie  first  part 


412  DEEDS 

and  against  all  and  every  other  person  or  persons,  shall 

and  will  warrant  and  forever  defend  by  virtue  of  these  presents. 

This  conveyance  is  made  by  the  said  part .  .  of  the  first  part 

to  secure  a  loan  of dollars,  made  to 

by  the  second  part.  .  hereto  under  the  conditions  of  a  certain 
bond  for  reconveyance  executed  by  the  said  second  part .  . ,  which 
said  bond  is  made  a  part  hereof,  and  the  covenants  of  which  said 
part.,  hereby  undertake.,  to  perform:  This  deed  and  said 
bond  are  executed  to  conform  to  sections  3306-3310,  6037  of 
the  Code  of  Georgia, 

In  witness  whereof,  the  said  part.  .  of  the  first  part  ha.  .  . 

hereunto  set hand  and  affixed seal,  and 

delivered  these  presents,  the  day  and  year  above  written. 

-...' .' [L.  S.] 

- [L.  S.] 

, [L.  S.] 

[L.  S.] 

Signed,  sealed  and  delivered  in  presence  of 


PROMISSORY 

No.. 


• ,19.... 

, after  date promise  to  pay  to  the 

order  of dollars,  at , 

for  value  received. 

With  interest  after  maturity  until  paid,  payable  semi-annu- 
ally,  at  eight*  per  cent,  per  annum,  with  all  costs  of  collection, 
including  ten  per  cent,  as  attorney's  fees,  if  collected  by  law  or 
through  an  attorney  at  law ;  said  semi-annual  interest  evidenced 

by coupons  hereto  attached.  Either  of  us,  whether 

principal,  security,  guarantor,  endorser,  or  other  party  hereto, 
hereby  severally  waive  and  renounce  each  for  himself  and  family, 
any  and  all  homestead  and  exemption  rights,  either  of  us  or  the 
family  of  either  of  us,  may  have  under  or  by  virtue  of  the 
Constitution  and  laws  of  Georgia,  or  of  any  other  State,  or  of 


DEEDS  413 

the  United  States,  as  against  this  debt  or  any  renewal  thereof, 
and  each  waives  demand,  protest  and  non-payment.  If  said 
coupons  for  semi-annual  installments  of  interest,  or  any  of  them, 
shall  not  be  paid  when  the  same  become  due,  then  the  entire 
principal,  and  the  interest  thereon,  at  the  option  of  the  payee 
hereof,  may  be  collected  immediately  (time  being  of  the  essence 
of  this  contract).  It  is  further  expressly  agreed  that  if  at  any 
time,  until  this  note  and  interest  thereon  is  fully  paid,  the 
premises  recited  in  the  conveyance  executed  contemporaneously 
herewith,  and  made  as  security  for  this  note,  or  any  portion 
thereof,  shall  be  levied  on  for  any  tax  or  tax  assessment,  or  the 
insurance  contracted  to  be  maintained  on  said  property  should, 
not  be  maintained  or  the  purchaser  of  said  estate  should  be 
compelled  to  make  any  repairs  on  said  premises,  then  and  in 
that  event  this  note,  and  interest  accrued  thereon,  may  be  imme- 
diately declared  as  having  become  due,  and  suit  may  be  in- 
stituted. 

Witness hand  and  seal.  .   this. day 

of ,  19 

, IL.  S.] 

'[L.S.] 

$ •  No 

On  the ....  day  of ,  19 .  . .  . ,  ....  promise 

to  pay  to  the  order  of , dollars, 

at (with  interest  thereon,  at  the  rate  of 

eight  per  cent,  per  annum  after  maturity,  payable  semi- 
annually),  being  the  semi-annual  interest  on  the  note  hereto 
annexed,  of  even  date  herewith,  subject  to  all  the  condi- 
tions of  said  note,  and  of  the  deed,  of  even  date  herewith, 
made  to  secure  the  same. 


$ No 

On  the day  of ,  19.  .  .  ., promise 

to  pay  to  the  order  of dollars, 

at (with  interest  thereon,  at  the  rate  of 

eight  per  cent,  per  annum  after  maturity,  payable  semi- 
annually),  being  the  semi-annual  interest  on  the  note  hereto 
annexed,  of  even  date  herewith,  subject  to  all  the  condi- 


414  DEEDS 

tions  of  said  note,  and  of  the  deed,  of  even  date  herewith, 
made  to  secure  the  same. 


(NOTE. — As   many   coupon  notes   may  be   attached   to   the   principal 
note  as  the  requirements  of  the  loan  demand.     Each  coupon  may  be 
transferred  by  the  following  indorsement  on  the  back  thereof: 
Pay  to  the  order  of 


without  recourse  on  me. 


BOND  TO  RECONVEY. 


Georgia, County. 

This  indenture,  made  and  entered  into  this day 

of.. ,  19 .  .  .  . ,  by  and  between .  . . , 

of  the  State  of and  county  of ,  part .  .  . 

of  the  first  part,  and ,  of  the  State  of 

and  county  of ,  part.  . .  of  the  second  part: 

Witnesseth,  That  the  said  part .  .  of  the  first  part held 

and  firmly  bound  unto  the  said  part.  .  of  the  second  part  in  the 

sum  of dollars,  binding sel , 

....:.  heirs,  legal  representatives  or  assigns,  to  convey  to  the 

said  part.  .  of  the  second  part, heirs,  legal  representatives 

or  assigns,  the  following  described  real  estate,  to  wit : 

The  payment  of  said  sum,  and  the  said  conveyance  of  said 
property,  being  based  on  the  following  conditions  and  agree- 
ments, to  wit: 

Whereas,  The  said  part.  .  of  the  second  part,  borrowed  from 

the  said  part .  .  of  the  first  part  the  sum  of dollars, 

and  gave  therefor promissory  note.  .,  with  coupons 

attached,  bearing  date  the day  of ,  19.  .  .  ., 

whereby  the  said  part.  .  of  the  second  part  agreed  and  promised 

to  pay  to  the  said  part .  .  of  the  first  part,  or 

at  the  office  of at the  sum 

of dollars,  on  the day  of , 

with  interest  thereon  from  date  at  the  rate  of  eight  per  cent. 

per  annum,  payable  semi-annually,  as  is  evidenced  by 

interest  notes  or  coupons  thereto  attached;  and  further,  that  in 


DEEDS  415 

case  of  default  in  the  conditions  of  said  note  or  any  of  them, 
the  owner  might  proceed  as  stated,  to  collect  the  principal  and 
interest  and  attorney's  fees  and  all  costs  of  collection ;  and 

AVhereas,  To  secure  the  payment  of  said  note  and  interest, 

the  said  part.  .  of  the  second  part  did,  on  the ,.  . .  .day 

of ,  19.  . .  .,  convey  to  the  said  part.  .  of  the  first 

part  the  property  hereinafter  described ;  now, 

Therefore,  in  consideration  thereof,  the  said  part.  .  of  the 

first  part  agrees  to,  and  hereby  for sel. .  ., 

heirs,  representatives  or  assigns,  do.  .  agree  to  reconvey  to  the 

said  part.  .  of  the  second  part, heirs,  representatives 

or  assigns,  the  said  premises  upon  the  full  compliance  by  the 
said  part .  .  of  the  second  part  with  the  conditions  set  out  in  the 
promissory  notes  hereinbefore  described,  and  in  this  bond  here- 
after contained. 

The  deed  above  referred  to  and  this  bond  being  executed  with 
reference  to  each  other,  and  to  conform  with  sections  3306-3310 
and  6037  of  the  Code  of  Georgia,  and  the  Acts  of  the  Legislature 
amendatory  thereto,  or  otherwise  enforced  as  expressed  in  said 
deed,  the  conditions  upon  which  the  reconveyance  is  to  be  made 
being  as  follows: 

1.  That  the  said  part.  .   of  the  second  part  shall  pay  the 
interest  as  stipulated  in  said  note,  and  if  not  so  paid  when  due, 
shall  pay  interest  on  the  unpaid  interest  from  the  time  it  be- 
comes due  until  paid,  at  the  rate  of  eight  per  cent,  per  annum. 

2.  That  said  part.  .  of  the  second  part  shall  pay  all  taxes 
and  assessments  levied  upon  the  property  hereinbefore  described, 
before  the  same  becomes  delinquent ;  and  if  not  so  paid,  the  said 
part .  .  of  the  first  part  may,  without  notice,  declare  the  prineipal 
and  interest  of  said  note  due  and  collectible  at  once,  and  may 
proceed  to  collect  the  same;  or  may  elect  to  pay  such  taxes  or 
assessments  and  collect  the  amount  of  the  same  from  said  part .  . 
of  the  second  part,  with  interest  at  the  rate  of  eight  per  cent, 
per  annum  from  the  time  of  payment,  and  that  the  amount  so 
paid  by  said  part.  .  of  the  first  part  shall  become  a  part  of  the 
indebtedness  of  the  said  part.  .  .  .of  the  second  part. 

3.  That  the  said  part.  .   of  the  second  part  shall  keep  all 
buildings,  fences  and  other  improvements  on  said  real  estate  in 
as  good  order  and  condition  as  the  same  are  in  at  this  date,  and 
shall  permit  no  waste;  and  further,  shall,  at  the  expense  of  said 
part.  .  of  the  second  part,  until  the  indebtedness  herein  recited 


416  DEEDS 

is  fully  paid  off,  keep  buildings  now  erected  or  in  process  of 
erection,  or  hereafter  to  be  erected,  on  said  lands,  insured  in  the 

amount  of dollars,  in  some  responsible  insurance 

company,  acceptable  to  said  part.  .  of  the  first  part,  with  loss, 

if  any,  payable  to  said  part .  .  of  the  first  part, heirs, 

representatives  or  assigns,  and  in  the  event  of  a  failure  so  to 
insure,  or  so  to  keep  insured,  said  part .  .  of  the  first  part  may 
procure  insurance  and  collect  the  cost  thereof  from  said  part.  . 
of  the  second  part,  and  that  the  amount  so  paid  shall  become  a 
part  of  the  indebtedness  of  said  part.  .  of  the  second  part. 

4.  That  said  part.  .  of  the  second  part,  upon  failure  either 
to  pay  the  principal  debt  herein  named  or  interest  thereon  when 
said  principal  or  interest  shall  become  due,  or  to  conform  to  or 
comply  with  any  of  the  agreements  or  conditions  above  recited, 
hereby  gives  the  right  to  said  part.  .  of  the  first  part  to  imme- 
diately proceed,  without  notice  to  said  part.  .  of  the  second 
part,  or  to  any  other  party,  to  enforce  the  collection  of  the  full 
amount  of  the  said  debt  and  interest,  and  all  costs  of  collections, 
including  an  amount  for  attorney's  fees  equal  to  ten  per  cent, 
of  the  debt  then  due;  and  that  the  property  hereinbefore  de- 
scribed shall  stand  as  security  therefor.  Time  being  of  the 
essence  of  this  contract. 

In  witness  whereof,  the  said  part..  .  of  the  first  part  has  here- 
unto set hand.  .  and  affixed seal.  .  the 

day  and  year  first  above  written. 

[L.S.] 

Attest : 


SECURITY  DEED— UNDER  §§3306-3310,  6037.     [Long  Form.] 


Georgia,   County. 

This  indenture,  made  this  the day  of , 

19.  . .  .,  between ,  of  the  county  of 

State  of ,  of  the  first  part,  and . .  .  ., , 

of  the  county  of State  of ,  of  the  second  part : 

Witnesses,  That  the  part.  .  of  the  first  part,  for  and  in  con- 
sideration of  the  sum  of dollars,  in  hand  paid 

at  and  before  the  execution  of  these  presents,  the  receipt  whereof 
is  hereby  acknowledged,  ha ....  granted,  sold  and  conveyed, 


DEEDS  417 


and  do.  ...  by  these  presents,  grant,  sell  and  convey  unto  the 

said  part.  .  of  the  second  part, heirs,  administrators, 

executors  and  assigns,  the  following  property,  to  wit : 


To  have  and  to  hold  said  bargained  property,  together  with 
all  and  singular  the  rights,  members  and  appurtenances  to  the 
same  belonging  or  in  any  way  appertaining  to  the  only  proper 
use,  benefit  and  behoof  of  the  said  part.  .  of  the  second  part, 

heirs,  administrators,  executors,  and  assigns  forever. 

And  the  said  part.  .  of  the  first  part,  for and 

heirs,  executors,  and  administrators,  will  warrant 

and  forever  defend  the  right  and  title  of  the  above  described 

property  unto  the  said  part.  .  of  the  second  part, heirs, 

executors,  administrators,  and  assigns,  against  the  claims  of  all 
persons  whomsoever. 

Nevertheless,  the  object  of  this  conveyance  is  to  secure, 'in 
conformity  to  sections  3306-3310  and  section  6037  of  the  Georgia 

Civil  Code,  a  debt  of dollars,  owing  by  the 

part.  .  of  the  first  part  to  the  part.  .  of  the  second  part,  and 

evidenced  by  a  certain  promissory  note,  dated  on  the day 

of ,  19 .  . .  . ,  and  due  as  follows,  to  wit : 

bearing per  cent,  interest  from 

and  conditioned  to  pay  all  costs  of  collection,  including  ten  per 

cent,  attorney's  fees ;  to  which  said  note  is  annexed 

coupons  for  semi-annual  interest,  numbered  from  No. 

to  No 

Now,  if  said  part.  .  of  the  first  part  shall  pay  the  coupons 
aforesaid,  at  the  date  when  they  respectively  fall  due,  and  shall 
also  pay  the  note  aforesaid  at  maturity,  according  to  the  tenor 
thereof,  then  the  part.  .  of  the  second  part  shall  reconvey  said 
property  according  to  the  bond  for  title  back,  given  contempora- 
neously herewith,  or  deliver  up  this  deed  for  cancellation,  at  the 
option  of  the  part.  .  of  the  first  part.  Said  part.  .  of  the  first 
part  hereby  agrees  that  if  the  aforesaid  debt  is  not  promptly 
paid  at  maturity,  according  to  the  tenor  of  said  note .  .  . ,  or  if 
the  interest  installments,  represented  by  the  coupons  annexed 
thereto,  are  not  promptly  paid  as  they  may  mature  (time  being 
hereby  expressly  made  of  the  essence  of  this  contract),  that  said 

part.  .  of  the  second  part, agent  or  legal  representative, 

may,  and  by  these  presents  is  authorized  to  sell  at  public  outcry 
before  the  court-house  door  in  the  county  of to 


418  DEEDS 

the  highest  bidder,  for  cash,  all  of  said  property  to  pay  said 
principal  debt,  with  interest  thereon  to  date  of  sale;  and  the 
expenses  of  the  proceeding,  including  attorney's  fees  of  ten  per 
cent,  if  incurred,  on  the  amount  of  principal  and  interest  due, 
after  advertising  the  time,  place,  and  terms  of  sale  in  the  public 
gazette  in  which  the  advertisements  of  the  sheriif  are  published 

in  said  county  of once  a  week  for  four  weeks, 

without  regard  to  the  number  of  days  prior  to  said  day  of  sale. 
The  part.  .  of  the  first  part  also  agrees  to  repay  any  amount 
for  taxes,  insurance,  and  repairs  which  the  part .  .  of  the  second 
part  shall  be  compelled  to  pay.  An  interest  in  said  property 
being  coupled  with  said  power  of  sale,  the  same  shall  be  irre- 
vocable by  the  death  of  either  party.  Said  part .  .  of  the  second 

part,   agent  or  legal  representative,  may  bid  at  said 

sale,  and  may  make  to  the  purchaser  or  purchasers  of  said 
property  fee  simple  titles  to  the  same,  thereby  divesting  out  of 

said  part .  .  of  the  first  part  all  right  and  equity  that 

may  have  in  and  to  said  property,  and  vesting  the  same  in  the 
purchaser  or  purchasers  thereof.  Said  part.  .  of  the  second 

part, agent  or  legal  representative,  are  authorized  to 

put  the  purchaser  or  purchasers  summarily  in  possession,  said 
part. .  of  the  first  part  hereby  covenanting  to  surrender  same 
without  hindrance  of  any  kind.  It  is  agreed  the  remedy  herein 
provided  for  is  cumulative  of  other  remedies  provided  by  law. 
The  proceeds  of  said  sale  shall  be  applied,  first,  to  the  pay- 
ment of  said  debt  and  interest,  the  expenses  attending  said  sale, 
including  attorney's  fees  as  aforesaid,  and  such  taxes,  insurance, 
or  repairs  upon  the  said  property  as  may  be  paid  by  the  said 
part.  .  of  the  second  part,  and  the  balance,  if  any,  to  be  paid 
to  the  said  part. .  of  the  first  part. 

In  witness  whereof,  the  part.  .  of  the  first  part  ha.  . .  here- 
unto set hand .  .  and  seal .  .  the  day  and  year  first 

above  written. 

, [L.S.] 

[L.  S.] 

[L.S.] 

Signed,  sealed  and  delivered  in  presence  of 


Georgia, County. 

The  note  secured  by  this  deed  having  been  paid  according  to 
the  tenor  thereof,  the  clerk  of  the  Superior  Court  of  said  county 


DEEDS  419 

is  authorized  and  directed  to  cancel  said  deed  on  the  records  in 
his  office. 

This. day  of ,  19 


DEED  TO  SECURE  A  DEBT. 


FROM 


TO 


STATE  OF  GEORGIA, 

County. 


CLERK  S  OFFICE,  SUPERIOR  COURT. 


Filed  for  record  at.  .o'clock.  .M., 

,  19 ....  Recorded  in 

book folio ,    

of ,  19 

,  Clerk. 


BOND  TO  RECONVEY. 


Georgia, County. 

Know  all  men  by  these  presents,  That. ,  of 

the  county  of ,  State  of ,  part.  .  of 

the  first  part, held  and  firmly  bound  unto 

of  the  county  of ,  State  of ,  party  of 

the  second  part, heirs,  executors,  administrators,  and 

assigns,  in  the  sum  of dollars,  subject  to  the 

following  conditions : 

The  condition  of  the  above  obligation  is  as  follows : 
Whereas,  the  said  part.  .   of  the  second  part  ha.  .  this  day 
made  and  delivered  to  the  undersigned,  a  certain  promissory 


420  DEEDS 

note  for  the  sum  of dollars,  dated  on  the 

day  of ,  19 . . . . ,  with coupons 

for  semi-annual  installments  of  interest  thereto  annexed ;  which 
said  note  and  interest  coupons  is  secured  by  a  deed  of  even  date 

herewith  made  by  said  part.  .  of  the  second  part  to  said 

part.  .  of  the  first  part,  to  certain  land  described 

in  said  deed. 

Now,  should  the  said  part.  .  of  the  first  part  well  and  truly 
pay  said  promissory  note,  and  interest  coupons  annexed  thereto, 
according  to  the  tenor  and  effect  thereof,  and  in  pursuance  of 
the  agreements  evidenced  by  said  security  deed,  the  part.  .  of 
the  first  part  binds  himself,  his  heirs,  administrators  and  assigns, 
to  make,  or  cause  to  be  made,  to  said  part .  .  of  the  second  part, 
good  and  sufficient  titles  back,  to  said  part .  .  of  the  second  part, 
in  fee  simple,  to  all  that  tract  or  parcel  of  land 

containing acres  of  land,  with  all  the  rights,  mem- 
bers and  appurtenances,  to  said  property,  in  anywise  appertain- 
ing or  belonging. 

The  deed  above  referred  to  and  this  bond  being  executed  with 
reference  to  each  other,  and  to  conform  with  sections  3306-3319 
and  6037  of  the  Civil  Code,  and  the  Acts  of  the  Legislature 
amendatory  thereto,  or  otherwise  enforced  as  expressed  in  said 
deed.  The  conditions  upon  which  the  reconveyance  is  to  be 
made  being  as  follows : 

1.  That  the  said  part   .  .of  the  second  part  shall  pay  the 
interest  as  stipulated  in  said  note ;  and  if  not  so  paid  when  due, 
shall  pay  interest  on  the  unpaid  interest  from  the  time  it  be- 
comes due  until  paid,  at  the  rate  of per  cent,  per  annum. 

2.  That  the  said  part.  .    of  the  second  part  shall  pay  all 
taxes  and  assessments  levied  upon  the  property  hereinbefore 
described,  before  the  same  shall  become  delinquent;  and  if  not 
so  paid,  the  said  part.  .   of  the  first  part  may,  without  notice, 
declare  the  principal  and  interest  of  said  note  due  and  collecti- 
ble at  once,  and  may  proceed  to  collect  the  same,  or  may  elect 
to  pay  such  taxes  or  assessments  and  collect  the  amount  of  the 
same  from  said  part.  .  of  the  second  part,  with  interest  at  the 

rate  of per  cent,  per  annum  from  the  time  of  payment, 

and  that  the  amount  so  paid  by  said  part.  .  of  the  first  part, 
shall  become  a  part  of  the  indebtedness  of  said  part.  .  of  the 
second  part  and  secured  by  the  said  deed. 


DEEDS  421 

3.  That  the  said  part.  .   of  the  second  part  shall  keep  all 
buildings,  fences  and  other  improvements  on  said  real  estate  in 
as  good  order  and  condition  as  the  same  are  in  at  this  date,  and 
shall  permit  no  waste ;  and  further,  shall  at  the  expense  of  said 
part.  .  of  the  second  part,  until  the  indebtedness  herein  recited 
is  fully  paid  off,  keep  buildings  now  erected  or  in  process  of 
erection,  or  hereafter  to  be  erected,  on  said  lands,  insured  in 

the  amount  of dollars,  in  some  responsible 

insurance  company,  acceptable  to  said  part .  .  of  the  first  part, 

with  loss,  if  any,  payable  to  said  part.  .  of  the  first  part, 

heirs,  representatives  or  assigns,  and  in  the  event  of  failure  so 
to  insure  or  so  to  keep  insured,  said  part.  .   of  the  first    may 
procure  insurance  and  collect  the  cost  thereof  from  said  part.  . 
of  the  second  part,  and  the  amount  so  paid  shall  become  a  part 
of  the  indebtedness  of  said  part.  .   of  the  second  part  secured 
by  said  deed. 

4.  That  said  part.  .  of  the  second  part,  upon  failure  either 
to  pay  the  principal  debt  herein  named  or  interest  thereon  when 
said  principal  or  interest  shall  become  due,  or  to  conform  to  or 
comply  with  any  of  the  agreements  or  conditions  above  recited, 
hereby  gives  the  right  to  said  part.  .  of  the  first  part  to  imme- 
diately proceed  without  notice  to  said  part.  .  of  the  second  part, 
or  to  any  other  party,  to  enforce  the  collection  of  the  full  amount 
of  the  said  debt  and  interest  and  all  costs  of  collections  including 
an  amount  for  attorney's  fees  equal  to  ten  per  cent,  of  the  prin- 
cipal and  interest  of  the  debt  then  due ;  and  that  the  property 
hereinbefore  described  shall  stand  as  security  therefor.     Time 
is  of  the  essence  of  this  contract. 

In  witness  whereof,  The  said  part.  .    of  the  first  part  has 

hereunto  set hand .  .    and  affixed ,  .  seal .  .  the 

day  and  year  first  above  written. 

[L.  S.] 

[L.  S.] 

Attest : 


(NOTE. — This  bond,  if  executed  with  the  formality  of  a  deed  may  be 
recorded,  and  when  recorded  it  operates  as  notice  of  the  equities  of  the 
holders  thereof  from  the  date  of  the  filing.  When  surrendered  or 
satisfied  it  may  be  cancelled  of  record  in  the  same  manner  that  the 
cancellation  of  mortgages  and  deeds  to  secure  debts  are  now  entered 
of  record.  Code,  §§4213-4215.) 


422  DEEDS 

Criterion  by  which  deed  to  secure  debt  is  distinguished  from  statutory 
mortgage  is  that  one  passes  title  and  other  does  not;  though  in- 
strument purports  to  convey  property  to  grantee,  yet  if  it  describes 
debt,  and  there  is  no  defeasance  clause,  it  is  mortgage  and  not 
deed.  13  App.  419  (79  S.  E.  225);  17  App.  666  (2)  (87  S.  E.  1100). 

FORM.  No  particular  form  is  necessary,  if  words  used  indicate  inten- 
tion to  convey.  32/170  (4). 


PETITION  TO  ESTABLISH  LOST  DEED.     §4191. 


Georgia, County. 

To  the  Superior  Court  of  said  County : 

brings  his  petition  against , 

and  alleges  the  following  facts : 

1.  The  said ,  the  defendant  herein,  is  a 

resident  of  said  county. 

2.  Your  petitioner  is  the  owner  of  a  certain  warranty  deed 
now  lost  or  destroyed,  conveying  to  petitioner  a  fee  simple  title 
to  certain  land  therein  described,  situate  in  said  county,  of 
which  said  deed  the  said  defendant  is  the  maker. 

(a)  A  substantial  copy  of  said  deed  as  near  as  petitioner 
can  recollect  is  hereto  attached  duly  sworn  to,  and  made  a  part 
of  this  petition. 

Petitioner  prays  that  the  clerk  of  this  court  issue  a  rule  nisi 
calling  upon  said  defendant  to  show  cause,  if  any  he  has,  why 
the  copy  deed  aforesaid  should  not  be  established  in  lieu  of  said 
lost  or  destroyed  original. 

Petitioner's  Attorney. 


OATH  TO  COPY  OF  LOST  DEED. 


Georgia, County. 

Personally  comes ,  who  on  oath  says  that 

the  foregoing  is  a  true  and  correct  copy,  in  substance,  as  near 
as  he  can  recollect,  of  the  deed  lost  or  destroyed. 

Sworn  to  and  subscribed  before  me,  this 
..day  of ,  19 


(Copy  of  lost  deed  must  be  established  by  the  Superior  Court  of  the 
county  where  the  land  lies,  §4191.) 


DEEDS  423 

RULE  NISI.     §5314. 


Georgia, County. 

In  the  Superior  Court  of  said  County. 
To : 

,  having  presented  to  the  clerk  of  said  court 

his  petition  seeking  the  establishment  of  a  deed  said  to  be  lost 
or  destroyed,  whereof  he  alleges  that  you  are  the  maker,  annex- 
ing to  his  petition  a  sworn  copy  thereof,  a  copy  of  which  said 
copy  is  hereto  attached : 

Therefore,  you  are  hereby  called  upon  to  show  cause,  if  any 
you  have,  at  the  Superior  Court  to  be  held  in  and  for  said  county 

on  the day  of ,  19 .  .  .  . ,  why  the  copy  sworn 

to  should  not  be  established  in  lieu  of  said  lost  or  destroyed 

original.     Witness  the  Honorable ,  judge  of 

said  court,  this day  of ,  19.  ... 

,  Clerk. 


RULE  ABSOLUTE.     §5316. 


'  I Superior  Court, 

Term,  19.... 


The  above  stated  petition  coming  on  regularly  to  be  heard, 
and  a  rule  nisi  having  been  duly  served,  as  provided  by  law, 
and  no  good  and  sufficient  cause  being  shown  why  a  rule  absolute 
should  not  be  granted,  it  is  ordered,  that  the  copy  deed  attached 
to  said  petition  be  and  the  same  is  hereby  established  in  lieu  of 
the  lost  or  destroyed  original.  Let  the  clerk  of  this  court  furnish 
the  established  copy  to  petitioner  with  a  certified  indorsement 
thereon  of  the  day  and  term  when  this  rule  absolute  was  granted, 
provided  all  costs  of  this  proceeding  be  paid. 

This day  of ,  19 

J.  S.  C..  ..C. 


424  DEFAULTS 

DEFAULTS. 


AFFIDAVIT  ON  APPLICATION  TO  OPEN.     §5656. 


(State  the  case.) 

Georgia, County. 

And  now  comes ,  defendant,  and  on  oath 

says  that  a  judgment  by  default  was  rendered  against  him  in 

the  above  stated  case,  at  the term,  19.  . .  .,  thereof; 

and  now  within  thirty  days  after  the  entry  of  said  default  the 
said  defendant,  offering  to  pay  the  costs  in  said  case,  moves  the 
court  to  set  aside  such  judgment,  because  he  says  that  he  had  a 
meritorious  defense,  to  wit:  (state  in  what  the  defense  consists), 

and  the  said offers  to  plead  instanter,  and 

announces  ready  to  proceed  with  the  trial. 

Wherefore  the  said moves  the  court  to  set 

aside  said  judgment  of  default,  and  allow  him  to  plead  to  the 
action. 

Defendant. 

Sworn  to  and  subscribed  before  me,  this 
.....  .day  of ,  19 


(Official  designation.) 


FORM  OF  JUDGMENT  ON  OPENING  DEFAULT. 


Superior  Court 

Term,  19 

The  above  motion  coming  on  for  a  hearing,  and  after  con- 
sidering the  showing  made,  it  is  ordered  and  allowed  that  the 
said  default  be,  and  the  same  is,  hereby  opened  upon  the  condi- 
tion that  the  movant  pay  the  costs  that  have  accrued  up  to  this 
time  in  said  case,  and  he  is  further  allowed  to  demur,  plead, 
answer,  or  any  one  of  these,  at  this  time. 

This day  of ,19 


Judge  of  Superior  Court, 


Amendment.  Judgment  by  default  may  be  amended  so  as  to  conform  to 
pleadings  even  after  execution  has  been  issued  and  property  sold 
thereunder.  131/590  (62  S.  E.  1040);  112/114  (37  S.  E.  119);  16 
App.  466,  468  (85  S.  E.  679). 


DEPOSITIONS — DISPOSSESSOBY  WARRANT  425 

Facts.  Before  motion  to  set  aside  judgment  can  be  considered,  must 
appear  that  there  was  good  and  meritorious  defense,  not  merely  by 
so  alleging,  but  by  setting  forth  fully  facts  which  constitute  pro- 
posed defense,  except  where  judgment  is  absolutely  void.  16  App. 
448  (85  S.  E.  613). 


DEPOSITIONS. 

(See  Interrogatories  and  Depositions,  post.) 


DISPOSSESSORY  WARRANT.     §§5385-5389. 


AFFIDAVIT. 

Georgia, County. 

In  person  before  me .  .,  a  justice  of  the  peace 

of .district,  G.  M.,  came ,  agent 

for ,  who  on  oath  says  that is 

in  possession,  as  tenant,  of  a  house  and  premises  situate  (de- 
scribe house  and  lot)  in  said  State  and  county,  the  property 

of ,  for  whom  deponent  is  the  duly  constituted 

agent ;  that  the  said  tenant  fails  to  pay  rent  now  due  on  said 
house  and  premises  [or  that  said  tenant  is  holding  said  house 
and  premises  over  and  beyond  the  term  for  which  the  same  were 
rented  or  leased  to  him]  ;  that  the  said  owner  desires,  and  has 
demanded,  possession  of  said  house  and  premises,  and  the  same 
has  been  refused  by  the  said 

And  deponent  makes  this  affidavit  that  a  warrant  may  issue 

for  the  removal  of  the  said from  said  house 

and  premises. 


Sworn  to  and  subscribed  before  me,  this 
......  day  of  .......  ........  ,  19  ____ 


Georgia,  ............  County. 

To  the  Sheriff,  his  Deputy,  or  Lawful  Constable  of  said  County, 

Greeting  : 
.,  ..............  having  made  affidavit  that  .............. 

is  in  possession,  as  a  tenant,  of  a  house  and  premises,  located 


426  DTSPOSSESSORY  WARRANT 

at ,  in  said  State  and  county,  the  property 

of ,  and  fails  to  pay  the  rent  due  on  said  house 

and  premises  [or  that  said  tenant  is  holding  said  house  and 
premises  over  and  beyond  the  term  for  which  the  same  were 
rented  or  leased  to  him]  : 

This  is,  therefore,  to  command  and  require  you  to  deliver  to 

the  said ,  or  his  representative,  full  and  quiet 

possession  of  said  house  and  premises  described  in  said  affidavit 

hereto  attached,  removing  the  said with  his 

property  found  thereon,  away  from  the  same. 

This  the day  of ,  19 


COUNTER  AFFIDAVIT.     §5387. 


Georgia, County. 

Personally  comes ,  who  on  oath  declares 

with  reference  to  the  eviction  affidavit  of , 

this  day  exhibited  to  him,  that  his  term  of  rent  has  not  expired, 
and  that  he  is  not  holding  possession  over  and  beyond  his  term 
[or,  "that  the  rent  claimed  is  not  due,"  or  "that  he  does  not 

hold  the  premises  from  the  said nor  from  any 

one  under  whom  said claims,  either  as  alleged 

in  said  affidavit  or  otherwise."]     This  the day 

of ,.-,19 

Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

,  J-  P. 


BOND.     §5387. 


We, ,  principal,  and , 

security,  acknowledge  ourselves  jointly  and  severally  bound  to 
,  subject  to  the  following  conditions : 

Whereas,  has  made  affidavit  pursuant  to 

§5385  of  Civil  Code  to  evict  said from  certain 

real  estate  in  said  county  described  as  follows:  [follow  descrip- 
tion in  warrant],  and  said has  filed  his  counter- 
affidavit  in  terms  of  the  law, 

Now  should  the  said pay  to  the  said 

4  .  .  .  such  sum,  with  costs,  as  may  be  recovered 


DISPOSSESSORY  WARRANT  427 

against  him  on  the  trial  of  the  case,  then  this  bond  to  be  void, 

otherwise  of  force  and  effect. 

Witness  our  hands  and  seals  this day  of , 

19.... 

Principal   [L.  S.] 

Security     [L.  S.] 


VERDICT. 

We,  the  jury,  find  for ,  the  plaintiff,  against 

,  the  defendant,  the  possession  of  the  premises, 

together  with  the  sum  of dollars,  rent  and  costs 

dollars. 

This day  of ,  19 

,  Foreman. 


JUDGMENT. 

Whereupon  it  is  considered,  ordered  and  adjudged  by  the 
court  that  the  possession  of  the  premises  in  dispute,  to  wit 

[describing  them],  be  awarded  to ,  the  plaintiff, 

and  that  the  clerk  of  this  court  do  issue  a  writ  of  possession 
accordingly.  Ordered  further  that  plaintiff  do  recover  of  de- 
fondant dollars,  principal,  and.  .  .  . 

dollars  costs.     This day  of ,  19.  ... 

Plaintiff's  Attorney. 


WRIT  OF  POSSESSION.     §5389. 


Georgia, County. 

To  the  Sheriff  of  said  County: 

Whereas,   an  issue  was  lately   tried   in   this  court  between 

,  plaintiff,  and ,  defendant, 

upon  an  issue  made  by  affidavit  of  plaintiff  pursuant  to  §5385 
of  the  Civil  Code  to  evict  defendant  from  certain  premises 
situate  in  said  county,  described  as  follows:  [describe  them  as 
in  the  judgment]  ; 

Whereto  defendant  filed  his  counter-affidavit ;  and 

Whereas  said  issue  was  determined  against  said : 


428  ,  DISTRESS  WARRANT 

Now,  therefore,  you  are  hereby  commanded  to  place  the  said 
plaintiff  in  full  possession  of  said  premises ;  and  further,  of  the 

goods  and  chattels,  lands  and  tenements  of  the  said , 

principal,  and , ,  security,  to  make  the  sum  of 

dollars,  principal,  with  interest  thereon  from 

the day  of ,  19.  . .  .,  and 

dollars  costs. 

And  you  will  make  return  hereof  at  the  next  term  of  this 
court. 

Witness  the  honorable ,  judge  of  said  court, 

this day  of ,  19.  ... 

,  Clerk. 


Affidavit  need  not  specify  amount  of  rent  unpaid.  84/561  (3)  (10  S.  E. 
1084).  Affidavit  must  be  made  before  judge  of  superior  court  or 
justice  of  peace.  123/455  (51  S.  E.  381). 

Agent  of  landlord  may  make  affidavit.  117/1007  (44  S.  E.  846).  No 
law  authorizing  attorney  at  law  or  in  fact  to  execute  affidavit  in 
name  of  owner,  purporting  to  be  made  and  signed  by  such  owner. 
142/200  (2)  (82  S.  E.  563). 

Arrest  of  proceedings  can  be  had  by  tenant  filing  counter-affidavit  and 
bond,  under  Code,  §5387.  143/402  (1)  (85  S.  E.  122). 

Description  should  be  sufficient  to  enable  sheriff  to  identify  land. 
111/807  (1)  (35  S.  E.  650). 

Oath.  Necessary  that  owner,  his  agent,  or  attorney  at  law,  or  attor- 
ney in  fact  shall  make  oath.  142/200  (1)  (82  S.  E1.  563).  If 
affiant,  at  time  of  tendering  affidavit,  uses  language  showing  that 
he  consciously  takes  upon  himself  obligation  of  an  oath,  and  officer 
so  understands,  and  immediately  signs  jurat,  this  will  constitute 
legal  swearing.  132/360  (8)  (64  S.  E.  275). 


DISTRESS  WARRANT.     §§3340-3342,  5390-5394. 


AFFIDAVIT.    §5390. 


Georgia, County. 

Personally  came  before  me ,  who,  on  oath, 

says  that ,  of  said  county,  is  justly  indebted 

to  him  in  the  sum  of dollars  and cents, 

for  the  rent  of in  the 

and  that  the  said  rent  is  now  due  and  unpaid. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


DISTRESS  WARRANT  429 

WARRANT. 


Georgia, County. 

To  the  Sheriff  or  his  Lawful  Deputy,  or  any  Constable  of  said 
County : 

having  made  oath  before  me  that 

of  said  county  is  justly  indebted  to  him  in 

the  sum  of. . dollars  and cents,  for  rent 

of and  that 

the  said  rent  is  now  due  and  unpaid. 

These  are  therefore  to  command  you  to  levy  on  and  sell  a 
sufficiency  of  the  estate,  both  real  and  personal,  of  the  said 

.........  .to  make   the  sum  of dollars. 

and cents,  and  all  costs  on  this  warrant;  and  have  the 

said  sums  and  also  this  warrant  before  me  at  the  next 

court  to  be  held  in  and  for  the on  the day 

of next,  to  render  to  the  said 

the  money  due  thereon. 

Signed  with  my  hand  and  official  signature,  this day 

of ,  19 

, ,J.P. 


LEVY. 


Georgia,  . County. 

Under  and  by  virtue  of  the  within  distress  warrant,  I  have 

this  day  levied  on  the  following  described  property , 

levied  on  as  the  property  of  defendant to 

satisfy  the  said  warrant  and  costs 

This day  of ,19 

Sheriff. 


COUNTER-AFFIDAVIT.     §5391. 


Georgia, County. 

Before  the  undersigned,    for  said  county, 

personally  appeared ,  defendant  in  a  certain 

distress  warrant  for dollars,  lately  issued  by  said 


430  DISTRESS  WARRANT 

judicial  officer  in  favor  of ,  and  on  oath  says 

that  the  sum  distrained  for  is  not  due. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


BOND.     §5391. 


Georgia, County. 

We, ,  principal,  and , 

security,  acknowledge  ourselves  jointly  and  severally  bound  to 

in  the  sum  of dollars,  subject 

to  the  following  conditions : 

Whereas,  the  said has  sued  out  against  the 

said before , the  justice  of  the 

peace  for  the G.  M.  district,  said  county,  a  distress 

warrant  for dollars,  which  has  been  duly  levied 

upon  certain  property  of  defendant,  to  wit:  [describe  the  goods.] 

And  whereas  the  said .has  made  oath, 

according  to  law,  that  the  sum  distrained  for  is  not  due ; 

Now  should  the  said pay  the  eventual 

condemnation  money,  and  all  costs,  then  this  bond  to  be  void, 
otherwise  to  be  of  force. 

Witness  our  hand  and  seals  this. .  . day  of ,  19 .... 

, Principal   [L.  S.] 

Security     [L.  S.] 

Subscribed  in  the  presence  of,  and  approved 

by  me,  this day  of ,  19 .... 

,J.P. 


Affidavit  by  person  other  than  one  seeking  warrant,  his  agent  or  attor- 
ney, is  mere  nullity.  14  App.  152  (1)  (80  S.  E.  509).  Affidavit  is 
unlawful  where  justice  signed  the  jurat,  but  no  oath  was  in  fact 
taken  or  administered.  130/74  (60  S.  EL  180).  Jurat  not  attached 
to  affidavit  is  amendable,  and  warrant  is  not  thereby  rendered  void, 
when  it  appears  oath  was  taken  before  warrant  issued.  106/73 
(31  S.  E.  806). 

Amendment.  Distress  warrant  is  amendable,  but  amendment  must  not 
set  up  new  cause  of  action.  14  App.  63  (60  S.  E.  805).  Where 
want  of  jurisdiction  appeared  on  face  of  warrant  and  there  was  no 
offer  to  amend  to  confer  jurisdiction,  demurrer  should  have  been 
sustained,  though  filing  of  counter-affidavit  made  distress  warrant 
mesne  process.  17  App.  562  (1)  (87  S.  E.  848). 


DIVORCE — DOWER  431 

Attorney  should  swear  positively  to  the  amount  claimed.    66/174  (3). 
Descriptio  personae.    Distress  warrant  in  favor  of  "C.  as  agent  of  F."  is 

fatally  defective,  the  words,  "as  agent  of  F."  being  mere  words  of 

description.     110/259   (34  S.  E.  330);   115/304   (1)    (41  S.  E.  620); 

122/423   (1)    (50  S.  E.  119). 
Replevy  bond  must  cover  whole  condemnation-money.     84/52   (3)    (10 

S.  E.  541). 
Set-off.     Plea  of  set-off,  alleging  against  plaintiff  in  warrant  items  of 

indebtedness    apparently    independent   of   rent   contract,   and    not 

alleged  to  be  connected  with  it,  is  not  allowable.    143/181  (84  S.  E. 

438);   125/319  (54  S.  E'.  177). 


DIVORCE.    §§2944-2991. 
(See  Husband  and  Wife,  post.) 


DOWER.     §§5247-5204. 


NOTICE  TO  ADMINISTRATOR  OF  INTENTION  TO  APPLY  FOR 
DOWER.     §5259. 


Georgia, County. 

To ,  permanent  administrator  of  the  estate 

of ,  late  of  said  county,  deceased : 

You  are  hereby  notified  that  I,  as  the  widow  of , 

deceased,  will  on  the day  of ,  19.  . .  .,  make 

application  to  the  Honorable ,  Judge  of  the 

Superior  Court  of  said  county,  for  the  assignment  of  dower  and 
for  the  appointment  of  commissioners  to  assign  me  dower  in  the 
lands  and  tenements  of  which  my  late  husband  died  seized  and 
possessed. 

This day  of. ,  19.... 


(NOTE:     This   notice  should   be  served  personally,   and   if  there  is 
more  than  one  administrator,  it  should  be  served  personally  upon  all.) 


APPLICATION  FOR  DOWER.     §5257. 


Georgia, County. 

To   the   Superior   Court  of   Said    County,   and   to   Honorable 
,  Judge  Thereof: 


432  DOWER 

The  petition  of ,  of  said  county,  shows  to 

the  court  the  following  facts : 

1.  That  she  is  the  widow  of ,  late  of  said 

county,  deceased,  who  died  on  the day  of , 

19.  .  .  . ,  more  than  three  months  heretofore. 

2.  That  her  said  husband  at  the  time  of  his  death  was  seized 

and  possessed  of  lots  of  land,  Numbers ,  and , 

in  the district  and section  of  said  county, 

each  lot  containing  forty  (40)  acres,  more  or  less. 

3.  That  on  the day  of ,  19 , 

petitioner  served ,  permanent  administrator 

of  the  estate  of ,  deceased,  her  late  husband, 

with  a  notice  in  writing  of  her  intention  to  apply  to  your  Honor 
on  this  date  for  the  assignment  of  dower  and  the  appointment 
of  commissioners  to  lay  off  and  admeasure  the  same,  a  copy  of 
which  said  notice  is  hereto  attached. 

Wherefore,  petitioner  prays  that  her  dower  be  assigned,  and 
the  appointment  of  five  commissioners  to  lay  off  and  admeasure 
said  dower,  and  also  the  proper  writ  issue  in  the  premises. 

This day  of ,  19 


APPLICATION  BY  WIDOW  WHO  Is  ADMINISTRATRIX. 


Georgia, County. 

To  the  Superior  Court  of  Said  County  and , 

Judge  Thereof: 

The  petition  of .shows  to  the  court  the 

following  facts: 

1st.     That  she  is  the  widow  of ,  who  died 

in  said  county  on  or  about  the day  of ,  19 .  .  .  . , 

more  than  three  months  before  the  filing  of  this  application; 

that  at  the  time  of  his  death  the  said was  seized 

and  possessed  of  the  following  lands  and  tenements  in  said 

county,  to  wit :  the  lots  of  land,  Numbers 

in   the district,    and section   of 

county,  each  lot  containing  40  acres,  more  or  less. 

2nd.     That  petitioner  is  the  administratrix  of  the  said.  .  .  . 

,  and  that  he  left  as  his  heirs  at  law, , 

,  and ,  each  of  whom  is  resident  of  said 

county  of ,  and  also and , 


DOWER  433 

who  are  non-residents  of  the  State  of  Georgia,  but  who  are 
residents  of  the  State  of 

3rd.  That  for  tAvo  months  previous  to  this  time  petitioner 

published  in  the .  .,  notice  of  her  intention  to  apply 

on  this  date  for  dower,  said  notice  being  addressed  to  the  said 

and ,  non-residents,  a  copy  of  which 

said  notice  is  hereto  attached  and  marked  "Exhibit  A,"  and 

also  served  each  of  the  other  heirs  at  law,  to  wit : , 

.  and ,  personally  with  a  notice  of 

her  intention  to  apply  on  this  date  for  the  assignment  of  dower 
as  herein  prayed,  a  copy  of  which  said  notice  is  hereto  attached, 
marked  "Exhibit  B." 

Wherefore,  petitioner  prays  that  her  dower  be  assigned,  and 
that  five  commissioners  be  appointed  to  lay  off  and  admeasure 
said  dower,  and  also  the  proper  writ  issue  in  the  premises. 
This ,  19 


COPY  OF  NOTICE  TO  NON-RESIDENT  HEIRS. 


Georgia, County. 

and ,  heirs  at  law 

of ,  late  of  said  county,  deceased,  are  hereby 

notified  that  on  the day  of ,  19 .  .  .  . ,  I  as 

the  widow  of ,  late  of  said  county,  deceased, 

will  apply  to  the  superior  court  of  said  county,  for  the  assign- 
ment of  dower,  and  the  appointment  of  commissioners  to  lay  off 
and  admeasure  the  same,  out  of  the  lands  and  tenements  of  the 

said ,  deceased,  of  which  he  died  seized  and 

possessed,  and  of  which  estate  I  am  the  administratrix. 

This..  .  19.. 


ORDER  OF  JUDGE  APPOINTING  COMMISSIONERS.     §5257. 


Office  of  Judge  of  the  Superior  Court. 

,  Georgia, ,  19 .... 

The  application  of . ,  as  the  widow  of 

,  late  of  said  county,  deceased,  for  the 

assignment  of  dower  and  the  appointment  of  commissioners  to 
lay  off  and  admeasure  the  same,  having  been  presented  to  me 
this  day,  and  there  being  no  objection  filed  thereto,  it  is  ordered 


434  DOWEK 

that , ,   ., , 

and ,  fit  and  discreet  freeholders  of 

county,  be  and  they  are  hereby  appointed  commissioners  to  act 
in  the  premises.  Let  the  clerk  of  this  court  issue  a  writ  for  that 
purpose  directing  said  freeholders  or  a  majority  of  them,  to 
enter  upon  said  lands  and  tenements,  and  to  admeasure,  lay  off 
and  assign  the  dower  to  which  the  applicant  is  entitled  by  law 
in  such  lands. 

This day  of ,  19 

Judge  of  the  Superior  Court. 


WRIT  OF  ADMEASUREMENT  OF  DOWER.     §5257. 


5 5 ''    '  ) 


Office  of  Clerk  of  Superior  Court. 

,  Georgia, .,  19.  . 

To 

and ,  Greeting : 

On  the day  of ,  19 .  .  .  . ,  you  and  each 

of  you  were  appointed  by  the  Honorable.  . , 

judge  of  the  superior  court  of  said  county,  as  fit  and  discreet 

freeholders  to  lay  off  and  admeasure  the  dower  of 

in  the  estate  of ,  late  of  said  county,  deceased, 

and  the  said  order  having  been  made  in  pursuance  of  the  appli- 
cation of  the  said as  the  widow  of  the  said 

,  deceased,  to  have  dower  assigned  to  her  out 

of  the  following  described  lands,  situated  and'  located  in  said 

county,  of  which  the  said., died  seized  and 

possessed,  to  wit:  (describe  lands). 

Now,  therefore,  by  virtue  of  said  order,  you,  or  a  majority 
of  you,  are  hereby  directed  to  enter  upon  said  lands  and  tene- 
ments and  to  admeasure  and  lay  off  as  you  may  think  proper, 

just  and  equitable,  and  assign  to  said ,  the 

dower  to  which  she  is  entitled  by  law  in  such  lands,  to  wit: 
One-third  part  thereof,  having  regard  always  to  the  shape, 
quantity  and  valuation  of  the  same. 

And  finally  you  are  required  to  make  return  of  your  pro- 
ceedings herein  to  the  next  term  of  the  Superior  Court  of  said 
county. 

Witness  the  Honorable ,  Judge  of  said 

court,  this  the day  of ,  19 .... 

Clerk  of  the  Superior  Court. 


DOWER  435 

OATH  OF  COMMISSIONERS.     §5260. 


Georgia, County. 

Before  me,  the  undersigned  attesting  officer,  personally  came 

> > _ j   •-•••. 

and ,  each  of  whom,  being  duly  sworn,  on  oath 

says  that  he  has  been  appointed  by  the  Honorable , 

Judge  of  the  superior  court,  as  one  of  the  commissioners  to  lay 

off  and  admeasure  the  dower  of in  the  estate 

of ,  late  of  said  county,  deceased,  and  each 

one  on  oath  says  that  "I  do  solemnly  swear  that  I  will  duly  and 
impartially  execute  the  lawrs,  to  the  best  of  my  understanding. 
So  help  me  God." 


Commissioners. 

Sworn  to  and  subscribed  before  me,  this 
the day  of ,  19 


J.  P. 


RETURN  OF  COMMISSIONERS.     §5261. 


Georgia, County. 

To  the  Superior  Court  of  Said  County: 

We,  the  undersigned,  commissioners  appointed  by  the  Hon- 
orable  ,  Judge  of  the  Superior  Court,  to  lay 

off  and  admeasure  the  dower  of ,  widow 

of ,  late  of  said  county,  deceased,  in  the 

property  of  which  he  died  seized  and  possessed,  after  having 
been  duly  sworn  according  to  law,  entered  upon  the  said  lands 
described  in  said  writ,  with  the  county  surveyor  of  said  county, 
whom  we  called  to  our  aid  and  assistance,  and  we  did  on  the 

day  of ,  19 .  . .  . ,  survey,  admeasure,  lay 

off  and  assign  to what  we  considered,  having 

due  regard  for  the  quantity,  shape  and  valuation,  to  be  one-third 
of  said  lands,  to  wit,  (describe  land),  a  plat  of  said  lands  having 

been  made  by  the  said ,  county  surveyor  of 

said  county,  and  hereto  attached  as  a  part  of  this  return.     In 


436  DOWER 

i  '„'.'." 

this  service,  we  spent  one  day,  to  wit,  the.  .  .  . day  of , 

19.  .  .  .,  and  the  county  surveyor  was  also  engaged  with  us  one 
day  in  the  performance  of  this  service  and  execution  of  this 
writ  This.  .  ,  19.  . 


Commissioners. 


ORDER  MAKING  RETURN  OF  COMMISSIONERS  JUDGMENT  OF 
COURT.     §5264. 


Superior  Court, 
.Term,  19.  ... 


In  the  matter  of  the  application 

of for  dower 

in   the  estate  of   her  husband, 

,  late  of  said 

county,  deceased,  and  the  return 
of  the  commissioners. 

The  return  of  the  commissioners  in  the  above  named  and 
stated  matter  having  been  made  to  the  court,  and  there  being 
no  objection  filed  thereto,  and  the  same  having  been  considered, 
it  is  ordered  that  the  same  be,  and  the  same  is  hereby,  made  the 

judgment  of  the  court,  and  that  the  said have 

a  life  estate  in  (describe  land).  Let  the  clerk  of  this  court 
issue  the  proper  writ  pursuant  hereto,  directing  the  sheriff  to 
put  the  said , in  possession  of  said  lands. 

Judgment  is  hereby  rendered  against ,  as 

administrator  of  the  estate  of ,  late  of  said 

county,  deceased,  to  be  levied  of  the  lands  and  tenements  of 

,  late  of  said  county,  deceased,  in  the  hands 

of  the  said ,  administrator,  to  be  administered, 

the  sum  of  two  ($2.00)  dollars  per  day  for  each  of  the  said 
commissioners,  and  also  the  further  sum  of  five  ($5.00)  dollars 

for .  ; ;  county  surveyor,  for  his  services  in  said 

matter.  This ,  19 .... 

Judge  of  the  Superior  Court. 


DOWER  437 

WBIT  OF  POSSESSION  FOE  DOWER  LANDS.     §5264. 


Georgia, County. 

To  the  Sheriff  of  Said  County  or  his  Lawful  Deputy : 

In  pursuance  of  the  judgment  of  the  superior  court  of  said 

county,  rendered  on ,  19 .  .  .  . ,  and  during 

the  regular term  thereof,  on  the  application  of 

,  widow  of  the  late ,  of  said 

county,  deceased,  for  her  dower  interest  in  his  estate,  you  are 

hereby  commanded  forthwith,  to  put  the  said 

in  possession  of  (describe  the  land),  which  said  lands  were  set 
apart  by  judgment  of  the  superior  court,  as  the  dower  interest 

of  the  said in  the  lands  and  tenements  of 

which ,  late  of  said  county,  died  seized  and 

possessed. 

You  will  make  proper  returns  of  your  acts  and  doings  in  the 

premises  as  soon  as  this  writ  is  executed.     This , 

19 

Clerk  of  the  Superior  Court. 


RETURN  OF  THE  SHERIFF. 


Georgia, County. 

To  the  Superior  Court  of  said  County: 

In  obedience  to  the  writ  directed  to  me,  or  my  lawful  deputy, 

1  have  this  day  put in  possession  of  (describe 

the  land),  as  directed  by  the  judgment  and  the  writ  issued 
thereon  from Superior  Court.     This ,  19.  .. 

Sheriff. 


CAVEAT  AND  OBJECTIONS  TO  RETURN  OF  COMMISSIONERS. 

§5262. 


Superior  Court 

Term,  19 

In  the  matter  of  the  return  of  the  commissioners  on  the  applica- 
tion of ,  as  the  widow  of , 

late  of  said  county,  deceased. 

Now  come and ,  heirs  at 

law  of ,  deceased,  and  traverse  the  return  of 


438  EJECTMENT 

the  commissioners  appointed  by  this  Honorable  Court  to  lay 

off  and  admeasure  the  dower  interests  of in 

the  estate  of ,  and  say  that  said  return  is  not 

true  in  the  following  respects,  to  wit: 

It  is  not  true  that  the  said  lands  laid  off  as  dower  are  not 
more  than  one-third  in  valuation  of  the  lands  and  tenements 

of  the  said.  .  .  . .  .  .  .,  deceased,  of  which  he  died  seized 

and  possessed,  for  the  reason  that  (set  out  the  reason),  and 
these  traversers  say  that  said  return  is  unjust  and  inequitable 
and  is  not  fair  to  these  traversers,  who  are  heirs  at  law  of  the 

said And  all  this  these  traversers  stand 

ready  to  prove  and  verify. 


or 

Attorney  for and ,.  . 

Now  comes and  joins  issue  upon  the  facts 

set  out  in  the  traverse  of and . .  .* , 

and  says  that  the  same  are  not  true. 


EJECTMENT.     §§5574-5590. 


COMPLAINT  FOR  LAND  AND  MESNE  PROFITS.     §§5575-5580. 


Georgia, County. 

To  the  Superior  Court  of  Said  County. 

The  petition  of against , 

as  defendant,  alleges: 

1st.    That  the  defendant, ,  is  a  resident  of 

said  county. 

2nd.      That  the  defendant  is  in  possession  of  lot,  of  land, 

No in district  and section  of 

said  county,  to  which  your  petitioner  claims  title. 

3rd.     That  the  said  defendant  has  received  the  profits  of 

said  land  since  the day  of ".  .,  19.  .  .  .,  of  the 

yearly  value  of  $ 

4th.     The  said  defendant  refuses  to  deliver  to  plaintiff  the 
possession  of  said  land  or  to  pay  him  the  yearly  profits  thereof. 


EJECTMENT  439 

5th.  Plaintiff  annexes  hereto  an  abstract  of  his  title  under 
which  he  claims  such  land. 

Wherefore,  plaintiff  prays  process  may  issue  requiring  the 
defendant  to  be  and  appear  at  the  next  term  of  the  Superior 
Court  of  said  county  to  answer  your  petitioner's  complaint. 

Petitioner's  Attorney. 

To  this  petition,  attach  an  abstract  of  title  relied  on  by  the 
plaintiff. 


(NOTE:  The  above  form  is  the  short  form  of  an  action  to  recover 
realty  as  set  forth  in  the  Code  of  1882-3,  except  that  it  is  paragraphed. 
The  Supreme  Court  in  the  case  of  Dugas  vs.  Hammond,  130  Georgia, 
87,  has  decided  by  a  majority  decision  of  that  Court  that  this  form 
was  not  repealed  by  the  Neal  Act  or  by  the  fact  that  it  was  left  out  of 
the  Codes  of  1895  and  1910.  The  better  plan  is  to  frame  the  petition 
under  the  Neal  Act,  set  out  exactly  what  the  plaintiff  claims  in  short 
paragraphs,  the  title  he  relies  on,  and  in  this  way  resolve  the  case  into 
as  few  issues  as  possible.) 


DISCLAIMER  OF  TITLE. 


(State  the  case.) 

And  now  conies  the  defendant  in  the  ejectment  suit  above 
stated,  at  this  the  first  term  of  the  court,  and  disclaims  any 
claim  or  title,  or  right  of  possession  in  or  to  the  premises  in 
dispute. 

This day  of ,19 

Defendant. 


PETITION  IN  ACTION  OF  EJECTMENT. 
(Common  Law  Form.) 


Georgia, County. 

To  the  Honorable  the  Superior  Court  of  said  County : 

The  petition  of  John  Doe  respectfully  shows  that  Richard 
Roe,  of  said  county,  has  injured  and  damaged  your  petitioner 

dollars.     For  that  the  said  Richard  Roe,  with 

force  and  arms,  entered  into  a  certain  tract  or  parcel  of  land  of 
your  petitioner,  with  the  appurtenances,  situate,  lying  and  being 
in  the. .  


440  EJECTMENT 

and  known  and  distinguished  in  the  plan  of  said 

by  number ,  containing , 

which.  . had  demised  to  your  petitioner  for  a 

term  which  is  not  yet  expired,  and  ejected  him,  your  petitioner, 
from  his  said  tract  or  parcel  of  land,  with  the  appurtenances. 

And  also,  that  the  said  Richard  Roe,  with  force  and  arms, 
entered  into  a  certain  other  tract  or  parcel  of  land  of  your 
petitioner,  with  the  appurtenances,  situate,  lying  and  being  in 

the aforesaid,  and  known  and  distinguished 

in  the  plan  of  said by  number , 

containing which had  demised  to 

your  petitioner  for  a  term  which  is  not  yet  expired,  and  ejected 
him  from  his  said  last  mentioned  farm  and  lot  of  land,  with 
the  appurtenances.  And  other  wrongs  the  said  Richard  Roe 
then  and  there  did,  to  the  great  damage  of  your  petitioner,  and 
against  the  peace  and  dignity  of  this  State.  And  thereupon 

your  petitioner,  by  his  attorney, ,  complains 

that,  whereas,  the  said heretofore,  to  wit:  on 

the day  of ,  in  the  year  19 .  .  .  . ,  to  wit : 

In  the and  county  aforesaid,  had  demised  to  your 

petitioner  the  said  tenements,  with  the  appurtenances  first  above 
mentioned,  to  have  and  to  hold  the  same  to  your  petitioner  and 
his  assigns,  from  the  day  and  year  aforesaid,  for  and  during 

and  unto  the  full  end  and  term  of .years  from  thence 

next  ensuing,  and  fully  to  be  complete  and  ended.  By  virtue 
of  which  said  last  mentioned  demise  your  petitioner  entered  into 
the  tenements,  with  the  appurtenances  first  above  mentioned, 
and  became,  and  was  thereof,  possessed  for  said  term,  so  to  him 
thereof  granted  as  aforesaid,  and  your  petitioner  being  so  thereof 
possessed,  the  said  Richard  Roe,  afterwards,  to  wit:  On  the 

day  of ,  in  the  year  aforesaid,  to  wit :  In 

the  year  nineteen  hundred  and ,  with  force  and 

arms,  etc.,  entered  into  the  said  tenements,  with  the  appurte- 
nances first  above  mentioned,  in  which  your  petitioner  was  inter- 
ested in  manner  and  for  the  term  aforesaid,  which  is  not  yet 
expired,  and  ejected  him,  your  petitioner,  from  his  said  farm 
and  lot  or  part  of  land,  with  the  appurtenances. 

And  also,  that  whereas  the  said on  the 

day  of in  the  year  19 .  .  .  . ,  in  the 

and aforesaid,  had  demised  to  your  petitioner  the 

said  tenements,  with  the  appurtenances  secondly  •  above  men- 
tioned, to  have  and  to  hold  the  same  to  your  petitioner  and  his 
assigns,  from  the  day  and  year  last  aforesaid,  for  and  during 


EJECTMENT 

and  until  the  full  end  and  term  of  fifty  years  from  thence  next 
ensuing,  and  fully  to  be  complete  and  ended.  By  virtue  of 
which  said  last  mentioned  demise,  your  petitioner  entered  into 
the  said  tenements,  with  the  appurtenances  secondly  above  men- 
tioned, and  became,  and  was  thereof,  possessed  for  the  last 
mentioned  term,  so  to  him  thereof  granted  as  aforesaid.  And 
your  petitioner  being  so  thereof  possessed,  the  said  Richard  Roe 

afterwards,  to  wit:  on  the day  of ,  the 

year  last  aforesaid,  with  force  of  arms,  etc.',  entered  into  the 
tenements,  with  the  appurtenances  secondly  above  mentioned, 
in  which  your  petitioner  was  so  interested  in  manner  and  for 
the  term  last  aforesaid,  which  is  not  yet  expired,  and  ejected 
him,  your  petitioner,  from  his  said  farm  and  lot  or  tract  of 
land,  with  the  appurtenances.  And  other  wrongs  the  said 
Richard  Roe  then  and  there  did,  to  the  great  damage  of  your 
petitioner,  and  against  the  peace  and  dignity  of  this  State. 
And,  also,  for  the  said  Richard  Roe  hereupon,  to  wit:  on  the 

said day  of in  the  year  nineteen 

hundred   and ,  with  force  and   arms,  broke  and 

entered  into  a  certain  farm  of  your  petitioner,  to  wit :  A  certain 
tract,  or  parcel  of  land  with  the  appurtenances,  situate,  lying 

and  being  in  the and  county  aforesaid,  and  known 

and  distinguished  in  the  plan  of  said by  number 

,  containing acres,  and  ejected  and 

expelled,  put  out  and  removed  your  petitioner,  from  his  posses- 
sion and  occupation  thereof,  and  kept  and  continued  him  so 
expelled  and  removed  for  a  long  space  of  time,  to  wit :  From 
the  day  and  year  last  aforesaid  hitherto,  and  still  continues  so 
to  do.  And  during  all  that  time  took  and  had  and  received  to 
the  use  of  him,  the  said  Richard  Roe,  all  the  issues  and  profits 
of  the  said  tenements,  being  of  great  yearly  value,  to  wit:  To 

the  yearly  value  of ,  and  still  continues  so  to 

have  and  receive  the  same.  Whereby  your  petitioner,  during 
all  the  time  aforesaid,  not  only  lost  the  issues  and  profits  of 
the  said  tenements,  with  the  appurtenances,  and  is  still  losing 
the  same,  but  was  and  still  is  deprived  of  the  use  and  means  of 
cultivating  the  same.  And  did  necessarily  lay  out  and  expend, 
and  still  continues  to  lay  out  and  expend,  divers  large  sums 
of  money,  amounting  in  the  whole  to  a  large  sum,  to  wit :  The 

sum  of in  about  recovering  possession  of  the 

said  tenements,  with  the  appurtenances,  to  \\  it :  In  the  county 
aforesaid:  And  other  wrongs  the  said  Richard  Roe  then  and 
there  did,  to  the  great  damage  of  your  petitioner,  and  against 


442  EJECTMENT 

the  peace  and  dignity  of  this  State.  To  the  damage  of  your 
petitioner dollars,  as  first  aforesaid.  Where- 
upon your  petitioner  brings  suit,  and  prays  that  process  may 
issue,  requiring  the  said  Richard  Roe,  personally  or  by  attorney, 
to  be  and  appear  at  the  next  Superior  Court  to  be  held  in  and 

for  said  county , . .  then  and  there  to  answer  your 

petitioner  in  an  act  of  ejectment,  and  for  mesne  profits. 

Plaintiff's  Attorney. 


(NOTE:     For  another  common  law  form  in  ejectment,  see  Cody  vs. 
Quarterman,  12  Ga.  386,  390.) 


PROCESS. 

Georgia, ,:. . .  .  County. 

To  the  Sheriff  of  said  County — Greeting : 

The  defendant,  Richard  Roe,  is  hereby  notified,  personally 
or  by  attorney,  to  be  and  appear  at  the  next  Superior  Court  to 

be  held  in  and  for  said  county,  on  the Monday  in 

,  19.  .  .  .,  then  and  there  to  answer  the  plaintiff's 

demand  in  an  action  of  trespass  and  ejectment  and  for  mesne 
profits,  as  in  default  thereof  the  court  will  proceed  as  to  justice 
shall  appertain. 

Witness  the  honorable .,  judge  of  said  court, 

this ,  19 

,  Clerk. 


NOTICE  TO  APPEAR. 


To : 

I  am  informed  that  you  are  in  possession  of,  or  claim  title  to, 
the  premises  in  the  accompanying  writ  mentioned  or  some  part 
thereof;  and  I,  being  sued  in  this  action  as  a  casual  ejector  only, 
and  having  no  claim  or  title  to  the  same,  do  advise  you  to  appear 
at  the  said  term  of  said  court,  by  some  attorney  of  said  court, 
then  and  there  by  rule  of  said  court  to  be  made  defendant  in  my 
stead;  otherwise  I  shall  suffer  judgment  therein  to  be  entered 
against  me  by  default,  and  you  will  be  turned  out  of  possession 

• ,19..., 

Yours,  etc., 

RICHARD  ROE. 


EJECTMENT  443 

PLEA  OF  DEFENDANT. 


demise  of  I  Trespass  and  Ejectment  and  for 

vg                     *  f      Mesne  Profits. 
.'....,  Deft, J   Term,  19.... 

And  the  said  defendant,  by ,  his  attorney, 

comes  and  defends  the  force  and  injury,  when,  etc.,  and  says, 
that  he  is  not  guilty  of  the  supposed  trespass  and  ejectment, 
above  laid  to  his  charge,  in  manner  and  form  as  the  said 

hath  above  thereof  complained  against  him. 

And  of  this  the  defendant  puts  himself  upon  the  country,  etc. 

Defendant's  Attorney. 


VERDICT  OF  JURY. 


We,  the  jury,  find  in  favor  of  the  plaintiff,  the  premises  in 

dispute.     We  further  find  the  sum  of .  .  . dollars  for 

mesne  profits  and  the  costs  of  suit. 

This day  of ,  19 

,  Foreman. 


JUDGMENT  OF  THE  COURT. 


Whereupon,   it  is   considered  by  the   court  here,   that   the 
plaintiff  do  recover  against  the  defendant,  lot  of  land  number 

in  the district  of county, 

with  its  appurtenances,  and  that  a  writ  of  possession  issue 
therefor,  in  favor  of  the  plaintiff.  And  it  is  further  ordered, 
that  the  plaintiff  do  recover  against  the  defendant,  the  sum  of 

dollars   for  mesne  profits,    and   the   further 

sum  of dollars  for  his  costs  in  this  behalf  laid 

out  and  expended.     Judgment  signed  this day 

of ,19 

Plaintiff's  Attorney. 


444  EJECTMENT 

WRIT  OF  POSSESSION. 


on  the 

demise  of   

vs. 
,  Deft. 

To  the  Sheriff  of  said  County — Greeting : 

Whereas,  the  plaintiff  has,  lately  in  our  Superior  Court  for 
said  county,  by  the  judgment  of  said  court,  recovered  of  the 

defendant  lot  of  land  number in  the district 

of  said  county,  (with  its  appurtenances,)  containing 

acres,  agreeably  to  original  survey;  which  premises  have  been 
held  by  defendant  unjustly,  and  of  which  he  has  been  convicted, 
as  appears  to  us  of  record.  And  for  as  much  as  it  is  adjudged 
in  said  court,  that  the  plaintiff  have  execution  upon  his  said 
judgment  against  the  said  defendant,  according  to  the  force, 
.form  and  effect  of  his  said  recovery;  therefore,  we  command 
you,  that  without  delay,  you  deliver  to  the  plaintiff,  full  and 
quiet  possession  of  the  said  premises  so  recovered,  with  the 
appurtenances. 

We  also  command  you,  that  of  the  goods  and  chattels,  lands 
and  tenements  of  the  defendant,  in  your  county,  you  cause  to 

be  made  the  sum  of dollars,  which  in  our  same 

court,  were  adjudged  to  the  plaintiff  as  mesne  profits  of  said 

premises,  against  the  defendant;  and  the  further  sum  of 

dollars  for  costs  and  charges,  by  the  plaintiff,  in  that 

behalf,  expended ;  whereof  the  defendant  is  convicted  as  appears 
to  us,  of  record.     And  have  you  those  moneys  before  our  said 

court,    on   the Monday   in next,    to   render 

unto  the  said  plaintiff  for  his  damages  aforesaid ;  and  have  you 
then  and  there,  this  writ. 

Witness,  the  honorable ,  judge  of  said  court, 

this day  of ,  19.  ... 

,  Clerk. 


RETURN  BY  THE  SHERIFF. 


Executed  the  within  writ  by  putting  the  plaintiff  in  quiet 

possession  of  the  premises  therein  mentioned,  on  the 

day  of ,  19.  . ,  .     And  have  raised  the  suni  of 


EJECTMENT  445 

dollars  (by  the  sale  of  the  defendant's  property)  ; 

which  sums  of  money  1  have  now  in  court,  subject  to  its  order. 

This day  of ,19 

,  Sheriff. 


PETITION  TO  RECOVER  REALTY  UNDER  THE  NEEL  ACT. 


Georgia,   County. 

To  the  Superior  Court  of  Said  County: 

The  petition  of  John  Doe,  as  plaintiff,  against  Richard  Roe, 
as  defendant,  alleges: 

1st.  That  Richard  Roe,  the  defendant,  is  a  resident  of  said 
county. 

2nd.     That  Richard  Roe  is  in  possession  of  lot  of  land, 

1ST  umber .  .  .in  the district  and 

section  of  said  county,  containing acres,  more  or  less, 

to  which  plaintiff  has  and  claims  title. 

3rd.  The  abstract  of  the  title,  under  which  plaintiff  claims 
said  land,  is  hereto  attached. 

4th.     That  on  the day  of ,  19 , 

John  Smith  made  to  plaintiff  a  title  in  fee  simple  to  said  land, 
and  plaintiff  went  into  actual  possession  of  the  same  under  said 
title  and  held  the  same  until ,  19.  ... 

5th.     That  on  said ,  19.  . .  .,  the  defendant 

entered  upon  said  land  with  force  and  arms  and  took  possession 
of  the  same  against  the  will  of  plaintiff  and  without  his  consent, 
and  has  been  in  possession  of  said  land  since  said  time,  and  has 
received  the  rents,  issues  and  profits  thereof. 

6th.     The  deed  that  plaintiff  received  from  John  Smith  on 

,    19 .  .  .  . ,   was  recorded   by  plaintiff   in 

the  clerk's  office  of  the  Superior  Court  of  said  county  on  the 
". day  of ,  19 

7th.     That  on  the day  of ,  19 ,  the 

said  John  Smith,  grantor  in  plaintiff's  deed  of , 

19.  .  .  .,  made  and  executed  to  the  said  Richard  Roe,  another 
deed  to  said  lot  of  land  and  which  was  recorded  in  the  office  of 
the  clerk  of  the  Superior  Court  on ,  19 .... 

8th.  The  yearly  rents,  issues  and  profits  of  said  land  are 
of  the  value  of dollars  per  year. 

9th.  That  plaintiff  and  defendant  held  title  to  said  land 
under  a  common  grantor,  John  Smith,  and  plaintiff's  deed  was 
first  recorded. 


446  EJECTMENT 

10th.  Plaintiff  brings  suit  for  the  recovery  of  said  land  and 
the  rents,  issues  and  profits  of  the  same  for  the  four  years  next 
preceding  the  filing  of  this  suit  and  up  to  the  time  of  trial,  and 
he  prays  judgment  accordingly. 

Wherefore,  plaintiff  brings  suit  and  prays  that  process  may 
issue,  requiring  the  defendant  to  be  and  appear  at  the  next 
term  of  the  Superior  Court  of  said  county  to  answer  your 
petitioner's  complaint. 

Attorney  for  Plaintiff. 


(NOTE:  If  the  plaintiff  so  wishes,  he  can  verify  this  petition  by 
attaching  an  affidavit  thereto  that  the  facts  stated  in  it  are  true  to  the 
best  of  his  knowledge  and  belief,  and  in  this  way  he  can  compel  the 
defendant  to  verify  his  answer  in  the  same  way.  The  great  point  in  a 
suit  of  this  kind  is  to  endeavor  to  present  the  issue  and  thus  get  every 
other  point  in  the  case  out  of  the  way.  This  form  can  be  adapted  to 
any  state  of  facts.) 


Abstract  of  title  amended  by  alleging  estoppel  in  pais.  121/216  (48  S. 
E.  925).  Complaint  for  land  (in  short  form)  can  not  be  dismissed 
on  demurrer  to  abstract  of  title.  82/637  (9  S.  E.  667) ;  123/327 
(5)  (51  S.  EL  423).  Duty  to  annex.  98/416  (25  S.  E.  516) ;  115/101 
(41  S.  E.  272).  Trespass  to  land,  action  to  enjoin,  at  instance  of 
true  owner;  abstract  need  not  be  attached  to  declaration.  123/326 
(51  S.  E.  418);  126/43  (54  S.  E.  814).  Amendment  adding  abstract 
of  title  is  allowable.  61/449  (1).  Abstract  of  title  is  amendable. 
120/529  (48  S.  E.  129).  Petition  may  allege  facts  showing  title 
instead  of  having  abstract  attached.  129/744  (59  S.  E.  778). 

Description  should  be  with  such  definiteness  that  in  event  of  recovery 
by  plaintiff  sheriff  could  execute  writ  of  possession  from  description 
given.  141/403  (1)  (81  S.  E.  194);  137/258  (73  S.  E.  380).  In- 
sufficient description  may  be  cured  by  amendment,  where  it  ap- 
pears that  description  in  original  petition  and  that  in  amendment 
refer  to  same  land.  141/403,  404  (2-a)  (81  S.  E1.  194).  See 
141/639,  640  (81  S.  E.  1035). 

Plea  must  be  filed  setting  out  value  of  land,  of  mesne  profits,  and  of 
permanent  improvements.  130/596  (61  S.  E.  465).  Value  of  per- 
manent improvements  must  be  alleged  with  certainty.  116/28  (4) 
(42  S.  E.  258). 

Verdict  may  be  amended  by  addition  of  proper  words  showing  that  it 
was  for  recovery  of  land  and  rent,  or  mense  profits.  143/621  (1) 
(85  S.  E.  867).  Verdict  not  describing  any  particular  part  of  land 
included  in  description  in  petition,  so  as  to  adjust  it  to  the  evi- 
dence, was  erroneous.  138/605  (2)  (75  S.  E.  671).  Plaintiff  can 
not  elect  to  take  money  verdict,  under  Code,  §5588,  where  it  is  ad- 
mitted that  improvements  exceed  mense  profits.  115/496  (13) 
(42  S.  E.  8). 


EQUITY  447 

EQUITY.     §§5508,  5538-5562. 


SKELETON  PETITION  IN  EQUITY  FOR  RELIEF,  INJUNCTION, 
RECEIVER,  ETC. 


Georgia, County. 

To  the  Superior  Court  of  said  County: 

The  petition  of ,  as  plaintiff,  against 

,  as  defendant,  alleges : 

1st.     That  the  defendant  is  a  resident  of  said  county. 

(The  great  thing  to  do  in  drawing  a  petition  in  equity  is  to  state  the 
facts  plainly,  fully  and  distinctly  and  to  make  the  petition  in  short 
paragraphs.  It  is  best  to  charge  the  main  facts  relied  on  in  separate 
paragraphs  so  that  the  defendant  may  be  compelled  to  answer  these 
separate  charges  pointedly  and  separately.  Remember  to  state  facts 
and  not  conclusions  of  facts.  This  may  make  the  petition  longer,  but 
it  will  make  it  better.  If  a  receiver  or  injunction  is  prayed  for,  the 
prayer  should  be  put  in  the  petition  and  the  special  reasons  upon  which 
it  is  asked.) 

Wherefore,  plaintiff  prays  that  process  may  issue,  requiring 
the  defendant  to  be  and  appear  at  the  next  term  of  the  Superior 
Court  of  said  county  to  answer  petitioner's  complaint. 

Attorney  for  Plaintiff. 


VERIFICATION  OF  PETITION.     §§5542-5546. 


Georgia, County. 

Personally   came   before   the   undersigned    attesting   officer, 

,  the  subscriber,  who  being  duly  sworn,  on 

oath  says  that  the  facts  and  things  stated  in  the  foregoing  peti- 
tion are  true. 

Sworn  to  and  subscribed  before  me,  this 

the day   of ,19....  '* 

'•  »  \ 

J.  P. 


4-48  EQUITY 

DEFENSES  TO  PETITION.    §§5630,  6285. 


(NOTE. — Defendants  in  equity  may  demur,  plead  or  answer,  and  may 
file  one  or  all  of  these  defenses  at  one  time.  In  all  cases,  demurrer, 
plea  or  answer  shall  be  disposed  of  in  the  order  named,  and  at  the  first 
term  unless  continued.) 


DEMURRER  TO  EQUITABLE  PETITION. 


}  Petition  for  injunction  and  equita- 
ble relief  in  the  Superior  Court 
of County, 
Term,  19 

Now  comes  the  defendant  in  the  above  named  and  stated  case 
at  this  the  appearance  term  and,  before  filing  his  answer  therein, 
files  these  his  general  demurrers  thereto,  and  for  grounds  thereof, 
says: 

1st.  Defendant  demurs  to  said  petition,  upon  the  ground 
that  the  allegations  therein  show  no  cause  of  action  against  this 
defendant  and  there  is  no  cause  of  action  set  out  in  said 
petition. 

2nd.  Defendant  demurs  to  said  petition,  upon  the  ground 
that  said  petition  does  not  set  out  any  matter  or  thing  of  equity 
or  equity  jurisdiction  and  that  upon  the  allegations  therein  the 
plaintiff  is  not  entitled  to  the  equitable  relief  prayed  for. 

Wherefore,  defendant  prays  that  these  his  grounds  of  de- 
murrer be  inquired  of  by  the  court  and  that  said  petition  be 
dismissed. 

Attorney  for  Plaintiff. 


DEMURRERS,  GENERAL  AND  SPECIAL. 


"|  Petition  for  injunction  and  equita- 
vg  '  I       ble  relief  in  the  Superior  Court 

of County, 

Term,  19 

Now  comes  the  defendant  at  the  appearance  term  of  said 
case  and,  before  filing  his  answer  therein,  files  these  his  grounds 
of  demurrer  thereto,  and  for  cause  of  demurrer,  says : 


EQUITY  449 

GENERAL  DEMURRERS. 


1st.  Defendant  demurs  to  said  petition  upon  the  ground 
that  the  allegations  therein  show  no  cause  of  action  against  this 
defendant  and  there  is  no  cause  of  action  set  out  in  said  petition. 

2nd.  Defendant  demurs  to  said  petition,  upon  the  ground 
that  said  petition  does  not  set  out  any  matter  or  thing  of  equity 
or  equity  jurisdiction  and  that  upon  the  allegations  therein  the 
plaintiff  is  not  entitled  to  the  equitable  relief  prayed  for. 


SPECIAL  DEMURRERS. 


1st.    Defendant  demurs  to  said  petition  upon  the  ground  that 

upon  the  allegations  therein,   is  a  necessary 

party  to  said  petition,  for  the  reason  (state  here  how  and  in 
what  way  he  is  a  necessary  party.) 

(Remember  that  a  special  demurrer  is  a  critic;  it  itself  must  be  free 
from  criticism,  and  it  must  point  its  finger  to  the  defect  complained  of. 
Any  number  of  special  demurrers  may  be  added  upon  proper  grounds.) 

Defendant  prays  that  each  of  these  grounds  of  demurrer  be 
inquired  of  by  the  court,  and  that  in  the  absence  of  proper 
amendment,  the  said  petition  be  dismissed. 

Attorney  for  Plaintiff. 


ANSWER  TO  PETITION  IN  EQUITY. 


}  Petition    for    injunction    and    re- 
ceiver, etc.     Tn 
o           '         n 
Superior  Court,    
Term,  19 

Now  comes  the  defendant  in  the  above  named  and  stated 
case  at  this  the  appearance  term,  and  not  waiving  his  demurrers 
herein  filed  and  his  right  of  demurrer,  answering  said  petition, 
for  answer,  says : 

1st.     Defendant  admits  that  he  is  a  resident  of  said  county. 

(Here-  answer  the  paragraphs  separately,  either  admitting  or 
denying  them  or  stating  in  the  answer  to  any  particular  para- 


450  ESTRAYS 

graph,  where  it  is  proper,  "for  want  of  sufficient  information, 
the  defendant  can  neither,  admit  or  deny  the  allegations  in  Para- 
graph   ") 

The   defendant  having  fully   answered  plaintiff's   petition, 
prays  to  be  dismissed  hence  with  his  reasonable  costs. 

Attorney  for  Defendant. 


VERIFICATION  OF  ANSWER.     §§5542-5546,  6319. 


Georgia, County. 

Personally  came  before  the  undersigned  attesting  officer,  the 
subscriber,  who,  being  duly  sworn,  on  oath  says  that  what  is 
contained  in  the  foregoing  answer  in  so  far  as  concerns  his  own 
acts  and  deeds,  is  true,  and  that  which  relates  to  the  act  or  deed 
of  any  other  person,  he  believes  to  be  true. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


J.  P. 


ESTRAYS.     §§2001-2013. 


DESCRIPTION  AND  APPRAISEMENT  OF  ESTRAYS.     §2002. 


Georgia, County. 

This  is  to  certify  that has  this  day  exhibited 

to  the  undersigned,  two  freeholders  of  the militia 

district  of  said  county,  a  certain ,  said  to  have 

been  taken  up  within  said  district  as  an  estray.  The  following 
is  a  description  of  said  animal;  [Describe  the  animal — giving 
a  particular  description  of  its  marks,  natural  and  artificial 
brands,  stature,  age  and  color.] 

We  estimate  said  animal  to  be  worth dollars. 

This day  of ,  19 

,  Freeholder. 

.  Freeholder. 


ESTRAYS  451 

AFFIDAVIT  OF  TAKEK-UP.     §2002. 


Georgia, County. 

Before  me,  the  undersigned,  the  Ordinary  of  said  county, 

personally  came ,  who  on  oath  says  that  on 

the day  of .N,  19 .-...,  deponent  took  up 

upon  his  own  freehold  (or  the  highway  thereto)  a  certain  estray, 

to  wit,  a in  the militia  district  of 

said  county;  that  on  the day  of ,  19.  . .  ., 

being  within  five  days  of  the  time  of  his  taking  up  of  said 

as  aforesaid,  he  exhibited  said  animal  to  two 

freeholders  of  said  militia  district,  who  took  down  in  writing  a 
particular  description  of  said  animal,  and  annexing  thereto 
their  appraisement  of  its  value;  and  now  within  five  days  of 
the  date  of  making  such  description  and  appraisement,  said 
deponent  hands  same  to  said  ordinary. 

Deponent  further  swears  that  the  marks  and  brands  of  said 
estray  are  correct,  as  stated  in  the  foregoing  certificate,  and 
have  not  been  altered  or  disfigured  to  his  knowledge  since  he 
took  it  up. 

Sworn  to  and  subscribed  before  me  this 
day  of ,   19 


Ordinary. 


ADVERTISEMENT  OF  ESTRAY.     §§2003,  2011. 


Georgia, County. 

The  following  is  a  copy  of  the  appraisement  and  description 
of  an  estray  which  has  been  handed  to  the  undersigned :  (Copy 
here  the  appraisement  and  description  above  alluded  to.) 

This day  of ,  19 

Ordinary. 


(NOTE. — The  ordinary  should  post  substantial  copies  of  said  appraise- 
ment and  description  at  the  court-house  door  for  sixty  days,  at  the 
place  of  holding  justices'  court  in  the  district  where  the  estray  was 
taken  up,  and  in  the  public  gazette  where  the  sheriff  advertises  sales. 
§2003.  When  the  appraised  value  of  the  estray  is  $20  or  less  it  is  the 
duty  of  the  taker  up  to  hand  the  description  and  appraisement  to  the 


452  ESTRAYS 

justice  of  the  peace,  or  notary  public  and  ex-officio  justice  of  the  peace 
in  the  district  where  taken  up,  and  make  affidavit  before  him,  before 
whom  further  proceedings  are  had.  §2011.) 


ESTEAY  NOTICE  BY  THE  ORDINARY. 


Office  of  the  Court  of  Ordinary. 

Georgia, County. 

All  persons  interested  are  hereby  notified,  that , 

of  the district,  G.  M.,  tolls  before , 

the  ordinary  of  said  county,  as  an  estray,  a 

about years  of  age ;  valued  by and 

.  .,  freeholders  of  said  county  and  district,  to  be 

worth dollars.  The  owner  of  said  estray  is 

required  to  come  forward,  pay  charges,  and  take  said 

away,  or  he  will  be  dealt  with  as  the  law  directs. 

A  true  extract  from  the  Estray  Book. 

This day  of ,  19 

Ordinary. 


ADVERTISEMENT  or  SALE  OF  ESTRAY.     §2004. 


Georgia, County. 

Will  be  sold  before  the  court-house  door  of  said  county,  on 

the Tuesday  in next  at  the  regular  hour 

for  conducting  sheriff's  sales,  at  public  outcry,  to  the  highest 
bidder  for  cash,  one  certain  animal,  to  wit:  (Describe  the 
animal  as  in  the  description  and  appraisement).  Said  animal 

is  sold  as  an  estray,  taken  up  by  one and  now 

in  his  possession.     Its  appraised  value  is.  $25. 

This day  of ,19..    .. 

,  Sheriff. 


(NOTE. — Where  the  appraised  value  is  $20  or  less  the  sale  is  by  the 
constable  of  the  district,  after  ten  days'  notice.    §2011.) 


ORDER  OF  SALE. 


Georgia, County. 

It  appearing  from  the  certificate  of  freeholders,  that  the  estray 


ESTKAYS  453 

taken  up  by ,  on  his 

freehold ,  in  the district,  G.  M.,  on 

the day  of ,  19 .  . .  . ,  is  not  of  sufficient 

value  to  pay  the  ordinary  expenses  in  matters  of  estrays: 
Ordered,  that  the  constable  of  said  district  sell  the  same  on  the 
freehold  where  taken  up,  after  ten  days'  notice  posted  at  the 
court-house  door  of  said  county  and  at  the  place  of  holding 
justice's  courts  in  said  district;  and  that  he  make  due  return  of 
such  sale  to  me. 

This day  of ,  19 

Ordinary. 


AFFIDAVIT  OF  OWNER.    §2006. 


Georgia, County. 

Personally   before   the   undersigned,    the    ordinary   of   said 

county,  comes ,  and,  on  oath,  says  that  a 

certain  animal  (give  description  here  as  in  the  description  and 

appraisement)   lately  taken  up  by  one as  an 

estray,  is  the  property  of  deponent. 

Sworn  to  and  subscribed  before  me  this 
day  of ,  19 


Ordinary. 


BOND  OF  OWNEK.     §2006. 


Georgia, County. 

Know  all  men  by  these  presents,  that  we, , 

as  principal,  and ,  as  security,  acknowledge 

ourselves  held  and  bound  unto ,  the  ordinary 

of  said  county  (or  justice  of  the  peace  in  and  for 

district,  G.  M.,  of  said  county,  as  the  case  may  be)  in  the  sum 

of dollars,  upon  the  condition  that  if  the  said 

shall  answer  any  demand  that  may  be  proven 

thereon  against  him  within  two  years,  in  respect  to  the  animal 


454  EXECUTIONS 

mentioned  in  the  foregoing  affidavit,  then  this  bond  to  be  void, 

else  of  force. 

Principal  [L.  S.] 

Security    [L,  S.] 

Attested  and  approved  this day 

of ,    19 , 

by    • 

Ordinary. 


COUNTER  AFFIDAVIT.     §2007. 


Georgia, County. 

Personally  before  me  came ,  who  on  oath 

says  that  a  certain. [describe  the  animal]   that 

was  on  the day  of . ,  19 .  .  .  . ,  taken  up  as  an 

estray,  is  not  the  property  of ,  but  is  the 

property  of  deponent. 

Sworn  to  and  subscribed  before  me  this 
day  of ,   19.  ... 


Ordinary. 


EXECUTIONS.     §§5305-5311,   6018-6077. 


SUPERIOR  COURT  Fi.  FAS.     §6018. 


Georgia, County. 

To  All  and  Singular  the  Sheriffs  of  this  State  and  their  Lawful 

Deputies : 
We  command  you,  That  of  the  goods  and  chattels,  lands  and 

tenements  of you  cause  to  be  made  the  sum 

of dollars  and cents,  principal,  and  the 

further  sum  of dollars  and cents,  for 

interest  due  to  the day  of ,  19 .  . .  . ,  and 

also  the  further  sum  of dollars  and cents, 

for  attorney's  fees;  and  also  the  further  sum  of 

dollars  and cents,  for  protest  fees ;  and  also  the  further 

sum  of dollars  and cents,  for  costs,  with 

interest  on  the  principal  sum  from  the.  .  .  .  .day  of , 


EXECUTIONS  455 

19.  .  .  . ,  at per  cent  per  annum,  which  at  our  Superior 

Court  for  said  county,  to  wit :  on  the day  of , 

19.  . .  ., ,  as  plaintiff,  recovered  against  said 

,  as  defendant,  for  principal,  interest  and 

costs ;  and  that  you  have  the  several  sums  of  money  before  the 

court  of  said  county  on  the Monday  in 

next,  with  this  writ  to  render  to  the  said  plaintiff 

the  principal,  interest  and  cost  aforesaid. 

Witness,  the  honorable ,  judge  of  said  court, 

this day  of ,  19.  ... 

,  Clerk. 


INDORSEMENTS  UPON  EXECUTION — COST  BILL,  ETC. 


FEE  BILL.    CLERK.    §5995. 


Filing  and  docketing $  2  00 

Process  and  copy 2  00 

Copies  Pet.  for  Serv 

Extra  copies  at  50c 

Filing  plea,  50c 50 

Demurrer  and  order,  $1.25 1  25 

Recording  at  15  cts.  per  100  words 

Verdict  and  judgment 2  00 

Subposnas  for  plaintiff 

Subposnas  for  defendant 

Motion  new  trial  and  order 1  25 

Brief,  evidence  and  order 1  25 

Order new  trial 75 

Bill  exceptions  and  order 1  25 

Copy  bill  exceptions  and  records 

Two  certificates  and  seals 2  00 

Eemitter   1  00 

Judgment  on  remitter 2  00 

Fi.  fa.  75 


SHERIFF.     §5997. 


Serving defendant $ 

Attendance    .  1  25 


456  EXECUTIONS 

WITNESS. 


Superior  Court. 

Term,  19 


vs. 


Fi.  FAS. 

Judgment day  of ,  19 , 

Principal 

Interest 

Attorney's  Fees , 

Protest  Fees , 

Clerk 

Sheriff 

Witness 

Minutes Page , 

Execution  docket Page , 


ENTERED  ON  GENERAL,  EXECUTION  DOCKET. 


~No Page this  the 

day  of ,19 

,  Clerk. 

,  Plff's  Atty. 

Suit  No. .  Term 


CITY  COURT  Fi.  FA. 


Georgia, County. 

To  All  and  Singular  the  Sheriffs  of  this  State,  and  their  Lawful 

Deputies : 
We  command  you,  That  of  the  goods  and  chattels,  lands  and 

tenements  of you  cause  to  be  made  the  sum 

of dollars  and cents,  principal,  and  the 


EXECUTIONS  457 

further  sum  of .dollars  and. cents,  for 

interest   up   to   the day   of ,    19.  .  .  .  ;    and 

also  the  further  sum  of dollars  and cents 

for  protest  fees;  and  also  the  further  sum  of .dollars 

and cents  for  cost,  with  interest  on  the  principal  sum 

from  the day  of ,  19 .  .  .  . ,  at per 

cent,  per  annum;  which  at  our  city  court  of to  wit: 

on  the day  of ,  19 . . . . , , 

as  plaintiff,   recovered   against   said ,   as 

defendant,  for  principal,  interest  and  costs ;  and  that  you  have 

the  several  sums  of  money  before  the  city  court  of 

on  the next,  with  this  writ,  to  render  to  the  said 

plaintiff  the  principal,  interest  and  cost  aforesaid. 

Witness  the  honorable ,  judge  of  said  court, 

this day  of ,  19.  ... 

.  Clerk. 


COUNTY  COUKT  Fi.  FA. 


Georgia, County. 

To  All  and  Singular  the  Sheriffs  of  said  State  and  their  Lawful 
Deputies  and  County  Court  Bailiffs,  Greeting: 

You  are  hereby  commanded,  That  of  the  goods  and  chattels, 

lands  and  tenements  of you  cause  to  be  made 

the  sum  of dollars  and cents,  principal, 

dollars  and cents,  interest  to  judgment, 

with  interest  on  the  principal  debt  from  the day  of 

,  19 .  . .  . ,  the  date  of  judgment,  Avhich 

recovered  against before  me,  at  a  couf t  held 

in  and  for  said  county,  on  the day  of , 

19 ....     And,  also,  the  further  sum  of dollars 

and cents,  for  costs  thereon  and  all  further  costs  that 

may  accrue.     And  have  you  the  said  sums  of  money,  together 

with  this  execution,  on  or  before  the day  of , 

19.  .  .  .,  at  the  court  aforesaid,  to  render  in  satisfaction  for  said 
debt  and  costs. 

Given  under  my  hand  and  seal,  this day 

of ,19 

(L.  S.) 

Judge  of  County  Court  of County. 


458  EXECUTIONS 

STATE  AND  COUNTY  TAX  Fi.  FA. 


Georgia, County. 

To  All  and  Singular  the  Sheriffs  and  Constables  of  this  State — 
Greeting : 

You  are  hereby  required,  That  of  the  goods  and  chattels, 

lands  and  tenements  of you  cause  to  be  made 

by  levy  and  sale  sufficient  thereof  to  make  the  sum  of 

dollars  and cents,  the  amount  of State 

and  county  tax  for  the  year  19.  .  .  .,  also  the  further  sum  of 
fifty  cents  for  this  fi.  fa.,  and  a  sufficient  amount  to  cover 
interest  on  said  principal  tax  at  the  rate  of  seven  per  cent,  per 

annum  from ,  19 .  .  .  . ,  until  settled,  together 

with  all  costs  that  may  hereafter  accrue ;  and  have  you  the  said 
sums  of  money  to  be  paid  to  me  upon  collection  thereof,  to  be 
rendered  to  the  State  and  county  the  principal,  interests  and 
costs  aforesaid ;  and  have  you  then  and  there  this  writ. 

Given  under  my  hand  and  official  signature,  this day 

of ,19 

(L.  S.) 

Tax-Collector County. 


LEVY  OF  Fi.  FA. 


Georgia, County. 

Levied  the  within  fi.  fa.  on  the  following  described  property, 

to  wit : in  the district 

of county,    Georgia 

levied  on  as  the  property  of to  satisfy  fi.  fa. 

in  favor  of  State  of  Georgia,  and  county  of against 

said for  State  and  county  taxes  for  the  year  19 ... 

,  Ga., ,19 

Served ,  19 

,  Sheriff. 


TRANSFER  OF  Fi.  FA. 


For  and  in  consideration  of  the  sum  of dollars 


EXECUTIONS  459 

the  tax,  cost  and  interest  due  the  within 

fi.  fa,,  I  hereby  transfer  and  assign  the  same  to 

This day  of ,  19 

,  Sheriff. 


JUSTICE  COURT  Fi.  FA.    §§4765-4769. 


Georgia, County. 

In  the  Justice  Court  of  the District,  G.  M. 

To  any  Lawful  Constable  of  said  County — Greeting: 

You  are  hereby  commanded  to  levy  on  and  sell  a  sufficiency 

of  the  property  of to  make  the  sum  of 

dollars,  principal, dollars,  interest  to  date  of 

judgment,  at per  cent,  per  annum,  and  all  future  interest 

at  the  same  rate dollars,  attorney's  fees,  and 

dollars,  cost  of  this  suit,  and  thirty-five  cents  for 

this  writ,  which  several  sums  were  adjudged  against  him  upon 

at  the  J.  P.  court  held  in  and  for  the 

district,  G.  M.,  said  county,  on  the day  of , 

19 . . .  . ,  in  favor  of And  have  you  said  sums 

of  money,  together  with  this  execution,  at  the  court  aforesaid  at 
the  next  term  thereof  after  said  money  can  lawfully  be  made, 
to  render  in  satisfaction  of  said  debt  and  costs. 

Given  under  my  hand  and  seal,  this  the day 

of ,19 

,J.P. 


REPLEVY  BOND. 


Georgia, County. 

Know  all  men  by  these  presents,  That  we, , 

as  principal,  and ,  as  security,  both  of  said 

county,  are  held  and  firmly  bound  unto in  the 

sum  of dollars,  for  the  payment  of  which  we  bind 

ourselves,  our  heirs,  executors  and  administrators,  jointly  and 
severally,  firmly  by  these  presents. 

Signed,  sealed  and  dated,  this  the day  of , 

19 

The  condition  of  the  foregoing  obligation  is  as  follows : .  . .  . 

having  this  day  obtained  an  execution  for  the 

sum  of dollars  against  the  said 


460  EXECUTIONS 

upon  an  affidavit  foreclosing  a  lien,  in  which  said  affidavit  said 

claims  that  he  has  a  laborer's  lien  upon 

,  which  said  property  has  this  day  been  seized 

by ,  legal  constable  in  and  for  the 

district,  G.  M.,  of  said  county,  by  virtue  of  said  execution,  and 

said .  .having  filed  a  counter-affidavit  thereto. 

Now,  should  the  said well  and  truly  pay  to 

the  said the  eventual  condemnation  money, 

whatever  it  may  be,  then  this  obligation  to  be  void,  else  of  full 
force  and  effect. 

Principal    (L.  S.) 

Security     (L.  S.) 

Executed  in  the  presence  of 


LEVY — FORM  OF.     §0026. 


§6026.  (5421.)  Form  of  levy.  "The  officer  making  a  levy 
shall  always  enter  the  same  on  the  process  by  virtue  of  which 
such  levy  is  made,  and  in  such  entry  shall  plainly  describe  the 
property  levied  on,  and  the  amount  of  the  interest  of  defendant 
therein." 


PRINCIPAL  AND  SECURITY — FORM  OF  EXECUTION  AGAINST. 

§4758. 


Georgia, County. 

To  any  Lawful  Constable  of  said  County — Greeting: 

You  are  hereby  commanded  that  of  the  goods  and  chattels, 

lands  and  tenements  of ,  principal,  and 

,  security,  you  make  or  cause  to  be  made  the 

sum  of dollars,  principal,  the  sum  of 

dollars,  interest  to  judgment,  with  interest  on  principal  debt  at 

per  cent,  per  annum  from day  of , 

19.  .  .  .,  to  date  of  judgment,  and  the  sum  of 

dollars,  cost  of  suit,   which   several   sums   were  recovered   by 

against  the  said ,  as  principal, 

and ,  as  security,  on  the day  of 


EXECUTIONS 

,  19.  .  .  .,  in  the  justice's  court  held  in  and 

for district,  G.  M.,  of  said  county.     And  have 

you  the  said  several  sums  of  money  at  the  .next  justice's  court 

to  be  held  in  and  for  said  district,  to  render  to  the  said 

And  have  you  then  and  there  this  writ. 

Given  under  my  hand  and  seal  this.  .  .  .day  of ,  19.  .. 

,J.P. 


ILLEGALITY.  §§5305-5311. 


AFFIDAVIT  OF  ILLEGALITY.  §5305. 


JOHN  DOE 

vs. 

ItlCIIAKD  ROE 


In  the  Justice  Court  of  the District, 


G.  M.,   County, 

Term,  19 

Execution  for  $ ,  principal,  $ . 


interest  to  judgment,  and  $ ,  attor- 
ney's fees  and  costs  of  suit, 

Georgia, County. 

Before  me, ,  a  justice  of  the  peace  in  and 

for  said  county,  personally  came  Richard  Roe,  who,  being  duly 
sworn,  on  oath  says  that  he  is  the  defendant  in  the  above  named 
and  stated  case  and  that  the  execution  therein  has  been  levied 

by ,  L.  C.,  on  one  certain  bay  horse,  as  the 

property  of  affiant,  and  affiant  says  that  the  said  execution  did 
issue  illegally  and  is  proceeding  illegally  against  him  for  the 
following  reasons,  to  wit: 

1st.  Affiant  has  never  had  his  day  in  court,  was  never  served 
with  any  process  or  other  notice  of  the  pendency  of  the  suit 
whereon  said  execution  is  based,  nor  did  he  waive  service  nor 
did  he  appear  in  or  defend  said  suit. 

(Or,  affiant  may  state  any  other  grounds  as  to  why  the  fi.  fa. 
issued  illegally  against  him  or  is  proceeding  illegally  against 
him,  being  careful  to  state  the  facts  and  not  conclusions.) 

RICHARD  ROE. 
Sworn  to  and  subscribed  before  me,  this 

the day   of ,    19 

,J.P. 


462  EXECUTIONS 

AFFIDAVIT  OF  ILLEGALITY  AND  TRAVERSE  OF  SHERIFF'S 

RETURN. 


Georgia, County. 

~}  Illegality   of   execution  from   the 

vs.  Superior  Court  of 

3       County,    Term,  19.  . . 

Personally  came  before  the  undersigned  attesting  officer,  who 
by  law  has  authority  to  administer  an  oath,  the  subscriber,  who, 
being  duly  sworn,  on  oath  says  that  an  execution  in  favor  of 

against ,  the  affiant,  which 

issued  from  the  Superior  Court  of  said  county  upon  a  judgment 

rendered   therein   at  the Term,   19.  .  .  . ,   of  said 

court,  has  been  levied  upon  a  certain  (here  describe  the  prop- 
erty), as  the  property  of  defendant,  issued  illegally  against 
affiant  and  is  proceeding  illegally  against  him,  for  the  following- 
reason  :  this  affiant  was  never  served  with  a  copy  of  said  petition 
and  process  in  said  suit,  and  he  never  waived  service  thereof 
and  he  never  appeared  and  plead  therein  and  never  authorized 
any  person  to  do  any  one  or  all  of  these  things  for  him,  and 
affiant  has  never  had  his  day  in  court  in  this  case.  Affiant 
further  says  that  since  the  last  term  of  said  court,  it  has  come 

to  his  notice  that  in  said  case  that ,  the  sheriff 

of  said  county,  made  a  return  of  service  on  the  petition  in  said 
case  that  he  served  this  affiant  personally  with  a  copy  of  said 

petition  and  process  on  the day  of ,  19 .  .  .  . , 

and  affiant  says  that  said  return   is  untrue,    and   he  hereby 

traverses  the  same  and  he  prays  the  court  to  make  said , 

sheriff,  a  party  to  this  case  by  proper  order. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


J.  P. 


ORDER  OF  JUDGE  MAKING  SHERIFF  PARTY. 


Illegality   of   execution   from   the 

vs.  [       Superior  Court  of 

County,    Term,  19 ... 

The  defendant  in  the  above  named  and  stated  case  having 
filed  his  affidavit  of  illegality  therein  upon  the  grounds  therein 


EXECUTIONS  463 

stated,  and  therein  traversing  the  return  of  service  by  the 
sheriff  and  praying  that  the  sheriff  be  made  a  party  to  said 

proceeding,  it  is  therefore  ordered  that , 

sheriff,  be  and  he  is  hereby  made  a  party  to  said  traverse  and 
said  illegality.  Let  him  be  served  at  once  with  a  copy  of  this 
order.  This day  of ,  19 .... 

Judge  Superior  Court. 

Due  and  legal  service  is  hereby  acknowledged  of  the  within 
and  foregoing  order  and  all  other  and  further  service  and  notice 
is  hereby  waived. 

'Sheriff 


(NOTE:  If  the  return  traverse  is  made  by  a  deputy-sheriff,  the  sheriff 
must  be  made  a  party  to  the  traverse.  The  better  plan  would  be  to 
make  both  the  sheriff  and  the  deputy-sheriff  parties  to  the  traverse.) 


TRAVERSE  OF  GROUNDS  OF  ILLEGALITY.     §5307. 


Now  comes  John  Doe,  and  traverses  the  truth  of  the  facts 
alleged  in  said  affidavit  of  illegality,  and  says  that  the  same 
are  not  true  and  that  the  fi.  fa.  should  proceed. 

JOHN  DOE. 


JOINING  ISSUE. 


Now  comes  the  affiant,  Richard  Roe,  and  says  that  the  grounds 
stated  and  alleged  in  said  illegality  are  true,  and  joins  issue 
thereon. 

RICHARD  ROE. 


(NOTE:  If  the  levy  is  upon  personal  property,  the  usual  form  of  a 
foreclosure  bond  can  be  given.  If  the  levy  is  upon  realty,  there  is  no 
necessity  of  any  bond.) 


VERDICT  OF  THE  JURY. 


We,   the  jury,   find  the  issue   in   favor  of  the  plaintiff  in 
execution. 

This day  of ,  19 

,  Foreman. 


464  EXECUTIONS 

JUDGMENT  OF  THE  Couirr. 


vs. 


[  Fi.   fa.    and   issue  joined  on   ille- 
)       gality. 


The  above  issue  having  been  submitted  and  tried,  at  the 
present  term,  and  the  jury  having  returned  their  verdict,  upon 
said  issue,  in  favor  of  plaintiff  in  execution,  it  is  therefore,  on 
motion,  ordered  and  adjudged  by  the  court  that  the  illegality 
filed  in  said  case,  be  overruled  and  dismissed,  and  that  said 
fi.  fa.  proceed.  And  it  is  further  ordered  that  the  plaintiff  in 

fi.  fa.  do  recover  from  the  defendant dollars 

for  his  costs  and  charges,  in  this  behalf  sustained.     Judgment 
signed  this day  of ,  19.  ... 

Attorney  for  Plaintiff  in  Fi.  Fa. 


FORTHCOMING  BOND.     ^§6040-6043. 


(To  accompany  affidavit  of  illegality  by  defendant  in  fi.  fa.) 


Georgia, County. 

Know  all  men  by  these  presents,  That  we, , 

principal,  and ,  security,  acknowledge  our- 
selves jointly  and  severally  bound  nnto , 

sheriff  of  said  county,  in  the  sum  of dollars,  subject 

to  the  following  conditions : 

The  condition  of  the  above  obligation  is  such — that 

Whereas,  The  said ,  sheriff  as  aforesaid,  has 

lately  levied  an  execution  issued  from  the  Superior  Court  of 

said  county  in  favor  of against 

upon  certain  property,  to  wit:  [describe  the  property],  as  the 

property  of  said ,  to  which  said  execution  and 

levy  the  above  named  principal  has  filed  his  affidavit  of  ille- 
gality, as  provided  by  law ; 

Now,  should  the  said ,  principal,  well  and 

truly  deliver  said  property  so  levied  upon  at  the  time  and  place 
of  sale,  in  the  event  that  said  illegality  shall  be  dismissed  by 


EXECUTIONS  465 

the  court,  or  withdrawn,  then  this  obligation  to  be  void,  else  of 

full  force  and  effect. 

Witness  our  hands  and  seals  this.  .  .  .day  of ,  19.  .. 

Principal   [L.  S.] 

Security     [L.  S.] 

Approved  and  attested  hy 


Sheriff. 


COST  EXECUTION  AGAINST  PLAINTIFF.     §5992. 


Georgia, County. 

To  any  Lawful  Constable  of  said  County: 

It   appearing  to   the  court  that   an   execution   in   favor   of 

against issued  from  the  justice's 

court  of  the district,  G.  M.,  of  said  county,  has 

been  returned  with  the  entry  thereon  by  the  proper  officer,  that 
there  is  no  property  of  the  defendant  out  of  which  satisfaction 
of  the  execution  can  be  made:  These  are,  therefore,  to  com- 
mand you,  that  of  the  goods  and  chattels,  lands  and  tenements, 

of  the  said you  cause  to  be  made  the  sum  of 

dollars,  costs  in  said  case,  and  thirty-five  cents 

for  this  fi.  fa.,  together  with  all  future  costs. 

And  have  you  the  said  sums  of  money  at  our  next  justice's 
court,  to  be  held  in  and  for  said  district,  to  be  disposed  of 
according  to  law ;  and  have  you  then  and  there  this  writ. 
Herein  fail  not. 

Given  under  my  hand  and  official  signature  this day 

of ...,  19 

,  J.  P. 


BON  A  ENTRY. 


Georgia, County. 

Diligent  search  made,  and  no  property  of  defendant  found 
upon  which  to  levy  the  within  fi.  fa. 

This day  of ,  19.... 

,  Sheriff. 


466  EXECUTIONS 

LEVY  ON  LAND — NOTICE  OF.     §§6031,  6033. 


[To  be  served  on  defendant,  and  also  on  tenant  in  possession,  if  any, 
within  five  days  after  the  levy.     §§6031,  6033.] 


Georgia, County. 

To : 

You  are  hereby  notified  that  on  the day  of , 

19.  . .  .,  a  fi.  fa.,  issued  from  the court  of  said  county 

in  favor  of against was  levied 

by  the  undersigned  upon  the  following  land,  situate  in  said 
county,   to  wit:     (describe  the  land  as  in  the  levy),   as  the 

property  of and  that  the  same  will  be  advertised 

to  be  sold  on  the  first  Tuesday  in ......  next. 

This day  of ,19 

,  Sheriff. 


STAY  OF  EXECUTION — FORM  OF  BOND.     §§4760,   6044-6046. 


vs. 


In  the  Justice's  Court  for  the 

District,  G.  M.,  of County, 

State  of Judgment  for 

Plaintiff  of dollars,  principal, 

dollars  interest,  and 

dollars,  cost  of  suit. 

And  now  comes  the  defendant  in  the  above  stated  case,  within 
the  time  required  by  law,  and  having  paid  the  costs,  brings 

and  tenders  him  as  security,  and  demands  a 

stay  of  execution  for  sixty  days.     And  the  defendant  and  said 

acknowledge  themselves  jointly  and  severally 

bound  unto  the  said  plaintiff  for  the  amount  of  said  judgment, 
as  to  both  principal  and  interest  in  the  terms  of  the  statute  in 
such  case  made  and  provided. 

This day  of ,  19 

Principal    [L.  S.] 

Security     [L.  S.] 

Executed  in  the  presence  of  and  approved 

by  me 
,J.P. 


EXECUTIONS  467 

PERISHABLE  PROPERTY — APPLICATION  FOR  SALE  OF.     §6068. 


Georgia, County. 

To ,  Justice  of  the  Peace  of  the 

District,  G.  M.,  of  said  County: 

The  application  of shows  that  on  the 

day  of ,  19.  . .  .,  an  execution,  issued  from  the 

justice's  court  of  said  district,  in  favor  of against 

was,  by  the  constable  of  said  district,  levied  on 

the  following  property,  to  wit:  (here  describe  the  property 
levied  on),  which  property  is  of  a  perishable  nature  (or  liable 
to  deteriorate  in  value  from  keeping,  or  there  is  expense  attend- 
ing the  keeping  of  the  same)  ;  that  the  said 

the  defendant  in  fi.  fa.,  fails  to  replevy  said  property,  and  the 
same  remains  in  the  hands  of  the  levying  officer.  Wherefore, 
applicant  prays  for  an  order  for  the  sale  of  said  property  in 
terms  of  the  statute  in  such  cases  made  and  provided.  This 
day  of ,  19 

Applicant. 


NOTICE  TO  DEFENDANT  IN  Fi.  FA.     §6069. 


(State  the  case.) 

To ,  or  his  Attorney : 

You  are  hereby  notified  that  I  will,  on  the day 

of ,  19 .  .  .  . ,  apply  to ,  justice 

of  the  peace  of  the district,  G.  M.,  of county, 

for  an  order  to  sell  certain  property,  to  wit:    (here  describe  the 

property  levied  on)  which  property  was,  on  the day 

of ,  19 .  .  .  . ,  levied  on  by  virtue  of  a  fi.  fa.  issued 

from  the  justice  court  of  the district,  G.  M., 

county,  in  favor  of against  yourself,  and  that 

said  application  will  be  heard  by  the  said 

at in  said  county,  on  the day  of , 

19 

Applicant. 


468  EXECUTIONS 

ORDER  OF  SALE  OF  PERISHABLE  PROPERTY.     §6068. 


It  appearing-  to  the  court  upon  the  application  of 

this  cfay  heard  that  on  the .day  of ,  19.  ... 

an  execution  issued  from  the  justice  court  of district, 

G.  M.,  in  favor  of against 

was  by levied  on  the  following  property,  to  wit : 

(here  describe  the  property  levied  on.)  And  it  further  appear- 
ing that  said  property  is  of  a  perishable  nature  or  liable  to 
deteriorate  in  value  from  keeping  (or  there  is  expense  attending 

the  keeping  of  the  same)  and  that  the  said 

the  defendant  in  fi.  fa.,  fails  to  replevy  said  property,  and  the 
same  remains  in  the  hands  of  the  levying  officer.  It  is  therefore 
ordered  that  the  said  property  be  advertised  and  sold  in  terms 

of  the  statute  in  such  cases  made  and  provided.     This day 

of ,  19 

,J.  P. 


ADVERTISEMENT  OF  SALE  OF  PERISHABLE  PROPERTY.     §6069. 


In  pursuance  of  an  order  granted  by ,  J.  P., 

of  the district,  G.  M.,  of county,  there  will 

be  held  before  the  court  house  door  in (the 

place  for  holding  court  for  said  district)   on  the day 

of ,  19.  .  .  .,  within  the  legal  hours  of  sale,  the 

following  property,  to  wit :    (here  describe  the  property. )     Said 

property  levied  on  as  the  property  of by  virtue 

of  a  fi.  fa.  issued  from  the  justice's  court  of  said  district  in 
favor  of against 

This day  of ...,19 

,  L.  C. 


CONTROL  OF  EXECUTION  BY  SURETY  PAYING  IT  OFF. 

§§3558-3561,  6046. 


ENTRY  BY  COLLECTING  OFFICER. 


Received day  of ,  19 .  .  .  . ,  the  whole 

amount  of  this  execution,  principal,  interest  and  cost,  amount- 


EXECUTIONS  469 

ing  to dollars  of one  of  the 

securities;  and  the  control  given  to  him,  according  to  law. 

,  Sheriff. 


ORDEK  OF  THE  COURT. 


vs. 


and 


Fi.  Fa.  from Superior  Court, 

returnable  to Term,  19.  ... 

Principal  debt,  $ Interest, 


Cost, 


It  appearing  to  the  court  here,  that and 

were  bona  'fide  securities  on  the  note,  the 

foundation  of  the  plaintiff's  demand,  and  in  no  way  interested 

in  the  consideration  thereof.     And  it  appearing  that  said 

has  been  compelled  to  pay  off  said  -fi.  fa.     It  is  ordered, 

that  said have  the  control  of  said  fi.  fa.  for 

the  purpose  of  collecting  by  levy  and  sale,  from  said 

the  proportionable  share  due  by  said on  said 

fi.  fa.     This day  of ,  19 


Attorney  for , 


SURETY  AOAIXST  PRINCIPAL. 


vs. 


and 


Fi.  Fa,  from Superior  Court, 

returnable  to Term,  19.  ... 

Principal  debt,  $ Interest, 


Cost, 


It  appearing  to  the  court  that was  security 

on  the  note,  the  foundation  of  the  above  fi.  fas.,  and  in  no  way 
interested   in  the  consideration  of  said  note.      That   separate 

actions  were  brought  on  said  note  against and 

said That  the  fi.  fa.  against  said 

has  been  paid  off  and  discharged  by  said It 

i>  therefore  hereby  ordered,  that  said have  the 

control  of  the  judgment  rendered  against  said 


470  EXECUTIONS 

and  the  execution  issued  therefrom,  in  said  cause  for  the  pur- 
pose of  remunerating  himself  out  of  his  property. 
This day  of ,  19 


Attorney  for. 


SURETY  AGAINST  CO-SECURITY. 


(State  the  case.) 

It  appearing  to  the  court  that and 

were  co-securities  on  the  note,  the  foundation  of  the  plaintiff's 
demand,  and  in  no  way  interested  in  the  consideration  of  said 
note.  '  That  separate  actions  were  brought  against  said  co- 
securities,  and  that -. one  of  said  co-securities, 

has  paid  off  the  said  debt.  It  is  hereby  ordered,  that  said 

have  the  control  of  the  execution  obtained  in 

said  cause,  against  said for  the  purpose  of 

collecting  out  of  him  his  pro  rata  part  of  said  debt. 

This day  of ,19 


Attorney  for, 


"Amount  of  interest,"  return  should  show;  where  return  fails  to  state 
any  interest  whatever  in  defendant,  levy  defective.  113/G95  (39 
S.  E.  455). 

"Backing"  of  execution  in  justice's  court  required  before  levy  in 
another  county;  what  is  meant  by  "backing."  113/93  (2),  95  (38 
S.  E.  319).  Sufficient  "backing"  under  Code,  §4760,  authorizes  levy 
in  another  county.  121/305  (48  S.  E.  956). 

Descriptio  personae.  Execution  against  A.  W.  S.,  "exec."  was  against 
him  individually.  119/666  (1)  (46  S.  E.  872).  Execution  appear- 
ing on  face  to  be  against  party  in  representative  capacity  is  valid 
though  the  word  "as"  not  prefixed  to  word  "administrator." 
55/209. 

Illegality.  Affidavit  not  sworn  to,  but  only  "witnessed"  by  notary,  is 
invalid.  141/687  (82  S.  E.  32).  Not  error  in  refusing  to  reopen 
case  for  amendment,  after  judgment,  where  entry  of  service  not 
traversed.  143/129,  130  (84  S.  E.  553).  Affidavit  filed  by  defendant 
in  mortgage  foreclosure  proceeding  is  amendable  to  same  extent  as 
are  ordinary  pleas.  13  App.  632  (79  S.  K  755).  Where  affidavit 
alleged  that  defendant  was  never  served  with  process  or  any 
notice  of  pendency  of  suit,  court  did  not  err  in  refusing  to  allow 
it  to  be  amended  by  traverse,  offered  after  several  terms  of  court 
had  intervened.  Affidavit  will  not  take  place  of  traverse  of  officer's 
return.  15  App.  162  (82  S.  E.  803).  Second  affidavit  is  not  main- 
tainable if  based  on  same  facts  that  first  affidavit  was  based  upon. 
15  App.  680  (84  S.  E.  175).  Where  affidavit  alleges  that  judgment 
debt  has  been  discharged  in  court  of  bankruptcy,  error  to  dismiss 


EXECUTORS — EXEMPTIONS — FEES — FERTILIZERS       471 

affidavit  because  of  failure  to  set  forth  or  attach  copy  of  abstract 
of  record  of  proceedings  in  that  court.  16  App.  472  (3)  (85  S.  E. 
791).  Amendment  of  affidavit,  fatally  defective,  in  not  stating  that 
ground  added  thereby  was  not  known  to  affiant  when  original 
affidavit  was  made.  Amendment  merely  amplifying  ground  of 
illegality  allowed,  without  oath  as  to  want  of  knowledge  at  time 
of  filing  original  affidavit.  17  App.  688  (87  S.  E.  1092).  Allegation 
that  deponent  "is  advised  and  believes"  that  debt  upon  which  judg- 
ment was  rendered  has  been  settled  in  full  by  principal,  is  insuffi- 
cient. 18  App.  780  (4)  (90  S.  E.  722). 

Judgment.  Execution  should  follow  the  judgment;  but  although  it  may 
misstate  date  of  judgment,  if  it  so  describes  nad  identifies  the 
judgment  as  to  make  certain  the  legal  authority  of  the  court  which 
caused  it  to  be  issued,  this  is  sufficient  to  authorize  the  sheriff  to 
levy  on  and  sell  the  land  of  the  defendant  in  fi.  fa.  143/164  (84 
S.  E'.  480). 

Levy  of  land  void  for  uncertainty  which  fails  to  describe  land  with  such 
precision  as  to  inform  purchaser  what  he  is  buying,  and  enable 
officer  selling  to  place  purchaser  in  possession.  100/486  (2),  492 
(28  S.  E.  219). 

Misdescription  in  naming  of  plaintiff  in  fi.  fa.  will  not  invalidate  execu- 
tion, when.  106/268  (32  S.  E.  124);  107/802  (33  S.  E.  684). 

Seizure.  Levy  of  sheriff  need  not  recite  actual  seizure.  109/180  (1) 
(34  S.  E.  353). 


EXECUTORS. 

(See  Administrators  and  Executors,  ante.) 


EXEMPTIONS. 

(See  Homestead  and  Exemptions,  post.) 


FEES. 

(See  Costs  and  Fees,  ante.) 

FERTILIZERS.     §§1771-1799.  . 


ILLEGALITY  OF  CONTRACT — PLEA  SETTING  UP. 


(State  the  case.) 

And  now  comes  the  defendant  in  tho  above  stated  case,  and 
for  plea  says: 

1.  That  the  consideration  of  the  contract  — sned  on  in  said 
case  was  commercial  fertilizers,  and  that  the  sacks  or  packages 


472  FORCIBLE  ENTRY  AND  DETAINER 

containing  said  fertilizers  had  not  on  them,  nor  any  of  them, 
the  marks  or  brands  of  an  inspector  of  fertilizers,  and  that  the 
same  were  not  tagged  as  required  by  law. 

And  of  this  he  puts  himself  upon  the  country. 

Defendant's  Attorney. 


FORCIBLE  ENTRY  AND  DETAINER.     §§5395-5405. 


FORM  OF  AFFIDAVIT.     §5395. 


Georgia,  ............  County. 

Personally  appeared  before  me,  ...............  ,  a  justice 

of  the  peace  in  and  for  the  ...........  district  of  said  county, 

...............  ,  who  upon  oath  says  that  on  the  ......  day 

of  ............  ,  19.  .  .  .,  he  was  in  the  peaceable,  legal  and 

quiet  possession  of  a  certain  house  and  lot  in  the  town  of  ...... 

and  in  the  .........  district,  G.  M.,  of  said  county,  known  as 

the  .........  .  .....  ,  .....  house  and  lot,  and  designated  as  lot 

No  ..........  in  the  plan  of  said  town,  and  that  on  the  day 

and  year  aforesaid,   .................  ,  of  said  county,  with 

menaces,  force  and  arms,  violently  and  without  authority  of 
law,  took  possession  of  said  house  and  lot,  and  doth  now  forcibly 
detain  the  same  without  authority  of  law. 

Sworn  to  and  subscribed  before  me,  this 
......  day  of  ...............  ,  19  ____ 


, 


FORM  OF  PRECEPT  FOR  SUMMONING  JURY.     §5396. 


To ,   Constable  for District,  G.   M. : 

You    are   hereby   commanded   immediately   to   summon   the 

following  named  twelve  jurors,  to  wit: , , 

, ,  etc.,  to  be  and  appear  before  me 

at ,  the  place  of  holding  court  in  and  for  the 

district,  G.  M.,  in  said  county,  on  the day 

of next,  by  10  o'clock  a.  m.,  then  and  there 

to  inquire  into  and  try  a  certain  case  of  forcible  entry  and 


FORCIBLE  ENTRY  AND  DETAINER  473 

detainer  pending  between and and 

have  yon  then  and  there  this  writ.     Witness  my  hand   and 

official  signature  this day  of ,  19.  ... 

,  J.P. 


FORM  OF  SUMMONS  TO  DEFENDANT.     §5395. 


Georgia, County. 

To ,  of  said  County : 

Whereas,  on  the day  of ,  19.  .  .  .,  appeared 

before  me  and  made  oath  that  on  the day  of , 

19.  .  .  . ,  he  was  in  the  legal,  peaceable  and  quiet  possession  of 

a  certain  house  and  lot  in  the  town  of. in  said 

county,  known  as  the house  and  lot,  and  designated 

as  lot  No in  the  plan  of  said  town,  and  that  on  the 

day  and  year  aforesaid  you  did  with  menaces,  force  and  arms, 
violently  and  without  authority  of  law,  take  possession  of  said 
house  and  lot,  and  doth  still  forcibly  detain  the  same  without 
authority  of  law. 

Wherefore,  you  are  hereby  notified  and  required  to  be  and 

appear  at in  said  county  (the  place  of  holding 

court  in  and  for  the .district,  G.  M.,)  on  the 

day  of ,  19.  . .  .,  by  10  o'clock  a.  m.,  when  and 

where  the  question  of  forcible  entry  and  detainer  between 
and  yourself  will  be  submitted  to  the  con- 
sideration of  a  jury  as  provided  by  law.  A  copy  of  said  affidavit 
is  hereto  attached.  Witness  my  hand  and  official  signature, 

this day  of ,  19.  ... 

,  J.  P. 


OATH  OF  JURY.     §5399. 


You  shall  well  and  truly  inquire  whether  A.  B.  has  made  any 
forcible  entry  into  the  lands  or  tenements  of  C.  D.,  and  him 
ejected  therefrom,  or  forcibly  detained  the  lands  or  tenements 
of  the  said  C.  D.,  and  a  true  verdict  give  according  to  the  facts 
as  they  may  appear  to  you  in  evidence.  So  help  you  God. 


474  FORCIBLE  ENTRY  AND  DETAINER 

VERDICT  OF  JURY. 


We,  the  jury,  find  a  forcible  entry  and  detainer  as  to  the 
defendant  and  the  possession  of  the  lands  and  tenements  in 
dispute  in  favor  of  the  plaintiff. 

This day  of ,  19 

,  Foreman. 


JUDGMENT  OF  THE  COURT. 


Whereupon  it  is  considered,  ordered  and  adjudged  by  the 

court  that  the  defendant has  been  guilty  of 

forcible  entry  and  detainer  of  the  premises  mentioned  in  the 
proceedings.     And  it  is  further  considered  that  the  plaintiff 

have  quiet  and  peaceable  possession  of  said 

premises,  and  that  a  writ  of  possession  issue  accordingly.     And 

further,  that  the  plaintiff  recover  of  the  defendant 

dollars  cost  of  suit,  for  which  let  execution  issue.     Judgment 

signed  this day  of ,  19 .... 

,J.P. 


WRIT  OF  POSSESSION.    §5400. 


Georgia, County. 

By ,  a  justice  of  the  peace  for  said  county. 

To ,  Sheriff  of  said  County : 

Whereas ,  lately  in  a  justice  court,  held  in 

terms  of  the  statute  for  that  purpose,  by  the  judgment  of  said 

court,  recovered  of ,  of  said  county,  possession 

of  a  certain  house  and  lot  situated  in  the  town  of , 

in  said  county,  known  as  the lot,  and  designated  in 

the  plan  of  said  town  as  lot  No ,  which  said  premises 

have  been  and  are  still  unjustly  withheld  from  the  said 

by  the  said ,  whereof  he  is  convicted  by  the 

verdict  of  a  jury.     And  it  having  been  adjudged  by  said  court 

that  the  said ! have  execution  upon  his  said 

judgment  against  the  said in  accordance  with 

his  recovery ;  therefore,  you  are  hereby  commanded  that,  without 
delay,  you  deliver  to  the  said possession  of  the 


GARNISHMENT  WHERE  SUIT  is  PENDING,  ETC.         475 

said  premises,  and  that  you  make  return  of  your  actings  and 
doings  in  reference  to  the  matters  herein  commanded  forthwith, 
and  return  this  writ. 

Witness  my  hand  and  official  signature,  this day 

of ,19.... 

,J.P. 


RETURN  OF  SHERIFF. 


Executed  the  within  writ  by  putting in 

quiet  possession  of  the  premises  therein  mentioned.     This 

day  of ,19 

Sheriff  of County,  Ga. 


Affidavit  and  summons  are  sufficient  if  they  allege  that  at  a  certain 
time  defendant  forcibly  entered  on  land  described,  in  possession  of 
plaintiff,  and  forcibly  detained  it;  need  not  describe  manner,  means 
or  nature  of  force  used.  86/271  (12  S.  E1.  412). 

Bond  for  "all  future  costs"  sufficient  in  certiorari.    75/847. 

Warrant  on  face  showing  entry  more  than  three  years  before  and  con- 
taining no  allegation  o£  forcible  detainer  was  demurrable.  48/408. 


GARNISHMENT 

WHERE  SUIT  IS  PENDING  OJl  JUDGMENT  HAS 
BEEN  OBTAINED.     §§5265-5304. 


AFFIDAVIT.    §5268. 


State  of  Georgia, County. 

In  person  before  me  came ,  who  on  oath 

says  that is  indebted  to 

in  the  sum  of dollars,  and cents  principal, 

dollars,  attorney's  fees,  interest  and  cost  upon 

that ha.  .   commenced  suit  thereon 

in  action  pending  in  and  returnable  to  the term. 

19.  .  .  .,  of  the court   (or  upon  a  judgment  obtained 

at  the term,   19.  .  .  .,  of  the court) 


476         GAKNISHMENT  WHERE  SUIT  is  PENDING,  ETC. 

and  that  affiant  has  reason  to  apprehend  the  loss  of  said  sum 
or  some  part  thereof  unless  process  of  garnishment  do  issue. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

' ,J.P. 


[NOTE. — If  the  affidavit  is  made  by  an  agent  or  attorney  at  law  of  the 
plaintiff  he  may  swear  "according  to  the  best  of  his  knowledge  and 
belief."  §5266.] 


BOND.     $5268. 


Georgia, County. 

We  the  undersigned,   •....,  principal,  and 

,  suret .  . ,  acknowledge  ourselves  bound  unto 

,  the  defendant  named  in  the  foregoing 

affidavit,  in  the  sum  of [double  the  amount  sworn 

to  be  due]  .  .  .dollars,  conditioned  to  pay  to  the  said  defendant.  . 
all  costs  and  damages  that  .  .he.  .  may  sustain  in  consequence 
of  suing  out  said  garnishment  sought  by  the  principal .  .  in  said 
affidavit,  in  the  event  that  the  plaintiff.  .  fail.  .  to  recover  in 
the  suit,  or  it  should  appear  that  the  amount  sworn  to  be  due 
on  such  judgment  was  not  due,  or  that  the  property  or  money 
sought  to  be  garnished  was  not  subject  to  process  of  garnish- 
ment. 

Signed  and  sealed  this day  of ,  19 .... 

Principal    [L.  S.} 

.Surety  [L.  S.] 

Tested  and  approved  by  me 

: J-  P. 


[NOTE. — Agent  or  attorney  at  law  of  plaintiff  making  the  affidavit, 
may  sign  name  of  plaintiff  to  bond.     §5266.] 


SUMMONS  OF  GARNISHMENT.    §5269. 


(State  the  case.) 

Georgia, County. 

To , ,  Garnishee: 

You  are  hereby  required  to  appear  at  the term 

of court  to  be  held  in  and  for .  .  .  .  on  the .  . 


GARNISHMENT  WHERE  SUIT  is  PENDING,  ETC.          477 

day  of ,  19.  .  .  . ,  [where  said  suit  is  pending,  or, 

where  said  judgment  was  obtained],  then  and  there  to  depose 
on  oath  what  you  are  indebted  to,  or  what  property  and  effects 

you  have  in  your  hands  belonging  to ,  the 

defendant,  or  had  at  the  time  of  the  service  of  this  summons  of 
garnishment  upon  you ;  and  also  what  you  have  become  indebted, 
or  what  property  and  effects  you  have  received  or  got  possession 
of,  belonging  to  the  said  defendant,  between  the  time  of  the 
service  of  this  summons,  and  the  time  of  making  your  return. 

This day  of ,  19.'... 

,  J.  P. 


RETURN  OF  SERVICE  OF  GARNISHMENT.     §5269. 


Georgia, County. 

On  this day  of ,  19.  . .  .,  at  the  hour 

of M.,  I  have  served  summons  of  garnishment  based  upon 

the  within  affidavit  and  bond  upon ;.•-..  .personally. 

Deputy  Sheriff, County,  Ga. 


RETURN  OF  OFFICER  LEVYING  ATTACHMENT. 


Georgia, County. 

I  have  this  day  levied  the  within  attachment  upon , 

more  or  less,  as  the  property  of  the  defendant.    And  have  served 

personally  with  a  summons  of  garnishment, 

returnable  to  the term  of  the court  of  said 

county.     This day  of ,  19 .... 

,  Sheriff. 


ENTRY  UPON  BOND  AND  AFFIDAVIT  OF  GARNISHMENT. 


Georgia, County. 

I  have  this  day  served personally  with  a 

summons  of  garnishment,  returnable  to  the term  of 

the court  of  said  county.    This.  .  .  .day  of , 

19 

,  Sheriff. 


478         GARNISHMENT  WHERE  SUIT  is  PENDING,  ETC. 

ANSWER  TO  SUMMONS  or  GARNISHMENT. 
§§5269,  5271,  5272,  5293,  5298. 


(State  the  case.) 
Georgia, County. 

Before  me  the  undersigned,   a  notary  public  and  ex-officio 

justice  of  the  peace  in  and  for  the district,  G.  M., 

of  said  county,  personally  came ,  who  being 

duly  sworn,  in  answer  to  a  certain  summons  of  garnishment 
heretofore  served  upon  him  in  the  above  stated  case,  deposes 
and  says  on  oath: 

Deponent  says  that  at  the  date  of  the  service  of  the  summons 
of  garnishment  upon  him  in  this  case,  he  was  indebted  to  the 

defendant dollars    [or  that  he  was  indebted  to  the 

defendant  nothing],  and  that  he  has  property  and  effects  in  his 
hands  belonging  to  the  said  defendant,  or  had  at  the  time  of 
the  service  of  said  summons  of  garnishment  upon  him,  to  wit 

[describe  the  property  in  hand]  :   [or,  that  he  now 

has  no  property  in  his  hands  belonging  to  said  defendant,  and 
had  none  at  the  time  of  the  service  of  said  summons  of  garnish- 
ment upon  him]  ;  that  deponent  has  become  indebted  to  the 
defendant  between  the  time  of  the  service  of  the  summons  of 

garnishment  and  the  time  of  making  this  his  answer 

dollars  [or  nothing,  as  the  case  may  be]  and  during  said  interval 
he  has  received  and  got  possession  of  property  and  effects 
belonging  to  the  defendant,  to  wit  [describe  the  property  if  any 
— or  nothing.] 

[If  the  amount  due  by  garnishee  is  for  the  wages  of  an 
employee  or  servant,  the  following  clause  should  be  inserted  in 

the  answer:     That ,  the  defendant,  was 

employed  by  this  affiant,  as  a  laborer,  at  the  wage  of  two  ($2.00) 
dollars  per  day,  and  the  said  sum  represents  his  wages  for 

days,  so  employed  by  affiant.     (See  Acts  1914,  p.  62, 

or  §5298,  Park's  Ann.  Code,  1914.)  ] 

Sworn  to  and  subscribed  before  me,  this 
.day  of ,   19 


Notary    Public    and    ex-officio    J.    P., 
District,  G.  M. 


GARNISHMENT  WHERE  SUIT  is  PENDING,  ETC.          479 
DISSOLUTION  OF  GARNISHMENT.    §§5280,  5281. 


BOND  DISSOLVING  GARNISHMENT.     §5280. 


Georgia, County. 

Know  all  men  by  these  presents,  that  we, 

principal,   and    ,   security,   acknowledge  our- 
selves jointly  and  severally  bound  to in  the 

sura  of dollars  subject  to  the  following  conditions : 

Whereas  the  said has  sued  out  process  of 

garnishment  against  the  said returnable  to  the 

Superior  Court  of county,  based  upon  a  suit  pending 

[or,  upon  "a  judgment  obtained,"  as  the  case  may  be,]  in  such 
court,  for  the  sum  of dollars; 

Now  should  the  said make  unto  the  said 

full  payment  of  the  judgment  that  shall  be 

rendered  on  said  garnishment,  or  should  the  said 

do  so  for  him,  then  this  bond  to  be  void,  else  of  full  force  and 
effect. 

Principal   [L.  S.] 

Security     [L.  S.] 

Executed  in  the  presence  of,  and  approved 

by  me: 


ST.  P.  and  ex-officio  J.  P. 


BOND  TO  DISSOLVE  GARNISHMENT  BY  DEFENDANT.    §5280. 


Georgia, County. 

Know  all  men  by  these  presents,  that  we, , 

as  principal,  and ,  as  surety,  are  held  and 

firmly  bound  unto ,  plaintiff,  in  the  just  and 

full  sum  of  $ (which  shall  be  double  the  amount 

sworn  to  be  due  in  the  suit  or  double  the  amount  sworn  to  be 
due  on  the  judgment),  subject  to  the  conditions  hereinafter 
stated. 

The  condition  of  the  above  obligation  is  as  follows: 

,  as  plaintiff,  has  sued  out  a  garnishment 

against ,  defendant,  in  a  certain  suit  (or  upon 

a  certain  judgment  stating  when   and  where  obtained)    now 


480          GARNISHMENT  WHERE  SUIT  is  PENDING,  ETC. 

pending  in  the court  of of  said  county, 

and  returnable  to  the term,  19-.  . .  .,  thereof. 

Now  if  the  said ,  principal,  and , 

surety,  shall  well  and  truly  pay  to  the  said , 

plaintiff  in  garnishment,  the  sum  and  amount  of  the  judgment 
rendered  in  favor  of  said  plaintiff  in  said  garnishment,  and  the 
costs  thereon,  then  in  such  case  this  bond  to  be  void,  otherwise 
of  full  force  and  effect.  In  witness  whereof  we  have  here- 
unto set  our  hands  and  affixed  our  seals,  this  the day 

of ,  19 

Principal    [L.  S.] 

Security     [L.  S.] 

Executed  in  the  presence  of  and  approved 

by  me: 


(J.  P.  or  Clerk  of  Superior  Court  as  the 
case  may  be.) 


FORTHCOMING  BOND  GIVEN  BY  CLAIMANT. 


Georgia,    County. 

We, ,  as  principal,  and , 

security,  acknowledge  ourselves  bound  unto , 

plaintiff,  in  the  sum  of. dollars,  subject  to  the 

following  condition: 

Whereas,  an  attachment  in  favor  of against 

,  returnable  to  the . .  . .court  of  the 

county  aforesaid,  at  the term,  19.  .  .  .,  has  been  levied 

upon ,  which has  been  claimed 

by N"ow  should  the  said 

deliver  said to  the  levying  officer,  at  the  time  and 

place  of  sale ;  provided,  said should  be  found 

subject  to  said  attachment,  then  this  bond  to  be  void,  otherwise, 

of  force.     This day  of ,  19.  ... 

Principal   [L.  S.] 

Security     [L.  S.] 

Executed  in  the  presence  of  and  approved 

by  me: 


GARNISHMENT  IN  ATTACHMENT  CASES  481 

GARNISHMENT  IN  ATTACHMENT  CASES. 
§§5094-5101. 


JUDGMENT   WHERE  GARNISHES   ANSWERS   THAT  HE   Is 
INDEBTED,  ETC.     §5098. 


(State  the  case.) 

It  appearing  to  the  court  that ,  garnishee  in 

said  case,  is  indebted  to  the  defendant, ,  in 

the  principal  sum  of dollars,  and  the  sum  of 

dollars,  interest.  It  is,  therefore,  ordered 

and  adjudged  by  the  court,  that  the  said recover 

of  the  said .the  said  sums  of 

dollars  principal,  and dollars,  interest. 

Judgment  signed day  of ,  19 .... 

Judge  S.  C................C. 

i 

Plaintiff's  Attorney. 


JUDGAIENT   ON   BOND   DISSOLVING   GARNISHMENT.       §5280. 


(State  the  case.) 

The  plaintiff, ,  having  heretofore  obtained 

the  judgment  of  the  court  against  the  property  [or,  "funds"] 
against  which  garnishment  was  issued, 

It  is  considered  and  adjudged  that  the  plaintiff  do  recover  of 

the  defendant, ,  and  the  surety  upon  his  bond 

to  dissolve  garnishment,  to  wit dollars,  principal, 

dollars,  interest,  and  costs. 

"  Judge's.  C.'.'.'.'.".''.'/.'.'.'.'/.'.'.C. 


TRAVERSE.    §5099. 


(State  the  case.) 

And  now  comes, ,  the  plaintiff,  at  this 

term  of  the  court  at  which  the  answer  of , 


482  GARNISHMENT  IN  ATTACHMENT  CASES 

garnishee,  was  made,  and  not  being  content  with  the  answer  of 
said  garnishee,  denies  the  truth  of  the  same. 


NOTICE  BY  PLAINTIFF  TO  GAKNISHEE  OF  TEAVEESE  OF 

ANSWEE. 


(State  the  case.) 

You  are  hereby  notified  that  the  answer  filed  by  you  as 

garnishee  in  the  above-stated  case,  was,  to  -wit,  on  the 

day  of ,  19.  .  .  .,  traversed  by  the  undersigned, 

the  plaintiff  in  said  action,  and  that  the  trial  of  said  garnish- 
ment will  be  had  on  the. ....  .day  of ,  19.  ... 

Plaintiff. 


[NOTE. — The  notice  should  be  served  at  least  five  days  before  the  trial 
of  the  garnishment,  if  in  a  justice  court,  at  at  least  ten  days  before 
such  trial  if  the  proceeding  is  in  any  other  court.  §6223,  supra.] 


AFFIDAVIT  AS  TO  SEEVICE. 


Georgia, County. 

Personally  before  me  came ,  who  on  oath 

says  that  on  the day  of ,  19 .  . .  . ,  he 

personally  served  a  copy  of  the  foregoing  notice  on , 

the  garnishee  above  named. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


Notary    Public    and    ex-officio    J.    P., 
District,  G.  M.,  of County. 


DISMISSAL  OF  GAENISHMENT. 


Clerk's  Office  Superior  Court, 

County,  Ga. 

To ,  Garnishee :  . 

This  is  to  certify,  that  the  plaintiff's  attorney  has  ordered  me 


GARNISHMENT  IN  ATTACHMENT  CASES  483 

to  dismiss  the  garnishment  in  the  case  of 

vs ,  and  that  the  same  is  hereby  dismissed. 

Given  under  my  hand  and  seal  of  office,  this day' 

of ,19 

,  Clerk. 


NOTICE  OF  DISSOLUTION. 


Georgia, County. 

Garnishment  in 

Court  of 

To ,  Garnishee : 

You  are  hereby  notified  that  the  defendant  in  the  case  herein- 
after stated  has  given  a  satisfactory  bond  for  the  dissolution  of 

garnishment  in  the  case  of .  .  vs 

and  that  said  bond  has  been  duly  approved  by  me. 

You  are  therefore  released  from  all  further  liability  in  said 
garnishment  suit,  with  the  exception  that  it  is  necessary  for  you 
to  file  your  answer. 

Witness  my  hand  and  seal  of  said  court,  this  the day 

of ,  19 

Clerk  Superior  Court County. 


Affidavit.  Attorney  swearing  "that  affiant  has  reason  to  apprehend," 
etc.,  sufficient;  affidavit  defective,  when.  126/114  (54  S.  E.  938). 
Affidavit  and  bond  sufficient  in  this  case.  123/224  (51  S.  E.  318). 

Agent  may  verify  answer  in  behalf  of  corporation  if  he  can  and  will 
depose  positively  to  facts  stated.  8  App.  114  (68  S.  E.  622). 

Amendment  of  answer  of  garnishee  is  permissible,  unless  the  alleged 
answer  is  a  nullity.  15  App.  293,  294  (3)  (82  S.  E.  942).  Error  to 
allow  amendment  for  purpose  of  curing  omission  to  comply  with 
Code,  §5304.  14  App.  360  (2)  (80  S.  E.  854).  Variance  between 
amount  claimed  in  original  suit  and  that  claimed  in  affidavit  is 
amendable.  4  App.  526  (2)  (62  S.  E'.  97). 

Answer.  Garnishee  failing  to  set  up  exemption  of  wages  which  he 
owes  defendant  sued,  is  not  protected  from  suit  by  defendant. 
125/104  (54  S.  E.  68).  Not  error  in  allowing  second  answer,  when. 
1  App.  430  (57  S.  E.  1047). 

Attorney  may  make  statements  necessary  to  obtain  garnishment. 
126/114  (54  S.  E.  938). 

Backing  ft",  fa.  not  necessary  in  order  that  summons  may  issue  thereon 
in  another  county.  6, App.  405  (2)  (65  S.  E.  165). 

Equitable  pleading  in  superior  court;  when  necessary  aid  to  garnish- 
ment proceedings.  127/626  (56  S.  E.  742). 

Exemptions.    Garnishee  must  set  up  exemption.    125/103  (54  S.  E.  68). 


484  GUARDIAN  AND  WARD 

GUARDIAN  AND  WARD.     §§3031-3116. 


PETITION  OF  NATURAL  GUARDIAN.     §3032. 


Georgia, County. 

To  Hon ,  Ordinary  of  said  County : 

The  petition  of shows  that 

is  the  father  of minor .  .  .  residing  in 

said  county;  that  said  minor. .  .   ha.  .  .   an  estate  of  probably 

dollars  coming  to .from 

estate. 

Petitioner  prays  an  order  appointing 

guardian  of  the  property  of  said  minor .  .  . 

,  Petitioner. 


ORDER. 


Court  of  Ordinary. 


Upon  reading  and  considering  the  petition  of  .............  , 

the  father  of  ...................  ,  it  is  ordered  that  the  said 

...............  be  and  he  is,  hereby  appointed  guardian  of 

the  property  of  said  minor  .  .  .  ,  and  that  ................... 

give  bond  and  security,  as  required  by  law,  in  the  sum  of 
...............  dollars,  and  take  and  subscribe  the  oath  as 

required  by  such  guardians. 

.........................  .  .  .,  Ordinary. 


BOND  OF  NATURAL  GUARDIAN.     §3032. 


Georgia, County. 

Know  all  Men  by  these  Presents: 

That  we, and ,  are  bound 

unto ,  ordinary  of  said  county,  and  his  suc- 
cessors in  office,  in  the  sum  of dollars,  for  payment 

of  which  we  bind  ourselves,  our  heirs  and  assigns,  jointly  and 
severally. 

Signed,  sealed  and  delivered  this.  . .  .day  of ,  19.  ... 

The  condition  of  the  above  bond  is  such,  That  if  said 

,  the  natural  guardian  of child 

to  whom  recently  there  has the  sum  of 


GUARDIAN  AND  WARD  485 

dollars,  shall  faithfully  discharge  his  duties  according  to  law, 

as  guardian  of  said  minor,  then  the  above  bond  to  be  null  and 

void,  else  to  remain  in  full  force  and  effect. 

[L.  S.J 

: [L.  S.] 

[L.  S.] 

Executed  in  the  presence  of  and  approved 
by  me: 


Ordinary. 


APPLICATION  BY  THIRD  PERSON  FOR  GUARDIANSHIP  OF  MINOR 
OVER  FOURTEEN.     §3035. 


Georgia, County. 

To  the  Ordinary  of  said  County : 

The  petition  of ,  a  resident  of  said  State, 

respectfully  shows  that is  a  minor  above  the 

age  of  fourteen  years,  residing  in  said  county;  that  there  is 

coming  to  him  from  the  estate  of property,  both 

real  and  personal,  of  the  probable  value  of dollars; 

that  petitioner  desires  to  be  appointed  guardian  of  the  person 
and  property  of  said  minor,  and  that  said  minor  has  selected 
your  petitioner  as  such  guardian. 

A  writing  signed  by  said  minor,  declaring  said  choice,  is 
attached  to  this  application. 

Wherefore  petitioner  prays  that  an  order  be  passed  sanction- 
ing such  selection  and  appointing  petitioner  guardian  of  the 
person  and  property  of  said  minor. 

Petitioner. 

I  hereby  select as  guardian  of  my  person 

and  property.     This day  of ,  19.  ... 


ORDER  APPOINTING  GUARDIAN. 


Court  of  Ordinary, 

Term,  19 

The  foregoing  application  of to  be  appointed 


486  GUARDIAN  AND  WARD 

guardian  of ,  a  minor,  coming  on  to  be  heard, 

and  the  facts  therein  alleged  being  shown  to  the  court  to  be  true 
and  the  selection  of  said by  said  minor  appear- 
ing to  be  judicious,  it  is  ordered  that  said. be, 

and  he  is,  hereby  appointed  guardian  of  the  person  and  property 

of  said upon  his  giving  bond  and  security  in 

the  sum  of dollars,  and  taking  the  oath  of  office. 

In  open  court,  this day  of ,  19 .... 

Ordinary. 


APPLICATION   BY   MINOR   OVER   FOURTEEN   YEARS   TO   HAVE 
GUARDIAN  APPOINTED  OF  His  OWN  SELECTION.     §3035. 


The  petition  of ,  a  resident  of  said  county, 

and  a  minor  child  of ,  recently  deceased, 

respectfully  shows  to  the  court  that  he  is  over  fourteen  years 
of  age;  that  he  desires  to  have  a  guardian  appointed  for  him- 
self, to  take  charge  of  his  person  and  property  in  said  State; 
that  he  has  selected  as  such  guardian  his  friend  and  relative, 

,  and  prays  the  court  to  sanction  his  choice, 

and  appoint  said his  guardian,  said 

residing  in  said  State. 

This day  of ,  19 


PETITION  BY  MINOR  FOR  REMOVAL  OF  GUARDIAN  AND 
APPOINTMENT  OF  ANOTHER. 


The  petition  of ,  a  minor  child  of , 

shows  to  the  court  that  he  is  fourteen  years  of  age,  and  resides 
in  said  county,  that  he  is  not  satisfied  with  his  present  guardian, 
but  desires  his  removal  and  wishes  the  court  to  appoint  as 

guardian  of  his  person  and  property  in  said  State, , 

a  resident  of  said  State,  who  consents  to  act. 


GUARDIAN  AND  WARD  487 

PETITION   FOR  LETTERS  OF  GUARDIANSHIP  OF  MINOR  UNDKI; 
FOURTEEN  YEARS.     §3046. 


APPLICATION. 


Georgia, County. 

To ,  Ordinary  of  said  County: 

The  petition  of ,  a  resident  of  said  State. 

shows  that ,  of  said  county,  aged  respectively 

years,  are  the  children  of ,  late 

of  said  county,  deceased,  and  that  they  are  entitled  to  receive 

from  the  estate  of  their .  each  the  sum  of 

dollars,  in and  that  it  is  necessary  that  they 

should  have  a  guardian  appointed  to  take  charge  of  their  per- 
sons and  property. 

Wherefore,  petitioner  prays  that  citation  may  issue  and  be 
published  in  terms  of  the  law,  and  if  no  sufficient  reason  be 
shown  to  the  contrary  that  he  be  appointed  the  guardian  of 
said  minors. 

Petitioner. 


ORDER  FOR  CITATION.     §3046. 


Court  of  Ordinary: 

Term,   19 

Upon  reading  and  considering  the  foregoing  petition,  ordered 
that  citation  issue  as  required  by  law. 

Ordinary. 


CITATION.    §3046. 


Georgia, County. 

To  All  Whom  it  May  Concern : 

,  a  resident  of  this  State,  having  in  due 

form  applied  to  the  undersigned  for  the  guardianship  of  the 

person  and  property  of ". ,  minor  children  of 

,  late  of  said  county,  deceased,  notice  is  hereby 

given  that application  will  be  heard  at  the 


488  GUARDIAN  AND  WARD 

next  court  of  ordinary  for  said  county,  on  the  first  Monday 

in ,  19 

Witness  my  hand  and  official  signature,  this day 

of ,  19.... 

Ordinary County. 


ORDER  APPOINTING  GUARDIAN.    §3047. 


Court  of  Ordinary, 

Term,  19 

Upon  reading  and  considering  the  application  of 

for  letters  of  guardianship  for ,  minors, 

residing  in  said  county,  and  it  appearing  that  citation  issued 
and  was  duly  published,  and  no  objection  having  been  filed ;  and 

appearing  to  be  a  proper  person  to  be  appointed 

guardian,  it  is  ordered  that  said be,  and  he  is, 

hereby  appointed  guardian  of  the  person  and  property  of  the 

said  minor.  . .,  and  that  letters  of  guardianship  issue  to 

upon taking  and  subscribing 

the  oath  and  giving  bond  and  security  as  required  by  law  in 
the  sum  of dollars. 

This day  of ,  19 

,  Ordinary. 


OATH  OF  GUARDIAN.     §3047. 


Georgia, .  County. 

I, ,  do  solemnly  swear  that  I  will  well  and 

truly  perform  the  duties  required  of  me  as  guardian  of 

,  and  faithfully 

account  with  my  said  ward.  .    for. estate. 

So  help  me  God. 

Guardian. 

Sworn  to  and  subscribed  before  me,  this 
day  of .'..,  19 


Ordinary County. 


GUARDIAN  AND  WARD  489 

BOND  OF  TEMPORARY  GUARDIAN.     §3046. 


Georgia, County. 

Know  all  Men  by  these  Presents : 

That  we, ,  principal,  and , 

securit.  .  .  .,  are  held  and  firmly  bound  unto 

ordinary  for  said  county,  and  his  successors  in  office,  in  the  just 

and  full  sum  of dollars,  for  the  payment  of  which 

sum  to  the  said  ordinary  as  aforesaid,  and  his  successors  in 
office,  we  bind  ourselves,  our  heirs,  executors  and  administrators, 
jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  this.  .  .  .day  of ,  19.  . . 

The  condition  of  the  above  obligation  is  such,  that  whereas 

the  said has  been  appointed  temporary  guardian 

of Now,  if  the  said do  well 

and  truly  demean self  and  faithfully  discharge 

duties  as  guardian  aforesaid,  agreeably  to  temporary  letters  of 
guardianship  bearing  even  date  herewith,  and  agreeably  to  law 
in  such  case  made  and  provided  the  above  obligation  to  be  void, 
otherwise  to  remain  in  full  force  and  virtue.  And  we  hereby 
waive  and  renounce  all  benefit  of  homestead  of  realty  and  ex- 
emption of  personalty,  under  the  laws  of  force  in  this  State,  as 
fully  and  completely  as  we  are  authorized  to  do  under  said  laws. 

., Principal  [SEAL] 

Security    [SEAL] 

Security    [SEAL] 

Executed  in  the  presence  of  and  approved 

by  me,  this  the.  .  . . day  of ,  19 ... 


Ordinary. 


OATH  OF  TEMPORARY  GUARDIAN. 


Georgia, County. 

I  do  solemnly  swear  that  I  will  well  and  truly  perform  the 
duties  required  of  me  as  temporary  guardian,  and,  faithfully 
account  with  my  ward  for estate.  So  help  me  God. 

Guardian. 

Sworn  to  and  subscribed  before  me,  this 
day  of , ,   19 


Ordinary County. 


490  GUARDIAN  AND  WARD 

LETTERS  TEMPORARY  GUARDIANSHIP  or  PROPERTY. 


Georgia, County. 

By  the  Ordinary  of  said  County. 
To ,  Greeting: 

Whereas ,  minor .  .   of , 

possessed,  in own  right,  of  considerable  estate 

by  means  whereof  the  power  of  granting  the  temporary  guar- 
dianship of  the property  of  the  said 

to  me  is  manifestly  known  to  belong ;  and  for  the  better  securing 

the estate  of  the  said  minor .  .    and  the  integrity 

and  confidence  reposed  in  you and  in  pursuance 

of  an  order  lawfully  appointing  you  and  your  compliance  there- 
with, I  do  hereby  commit  the  temporary  guardianship  of  the 

property  of  the  said to  you  the 

said you  assenting  thereto  by  your  acceptance 

of  these  letters: 

Herein  charging  you,  That  you  inquire  into  and  take  charge 

of estate,  both  real  and  personal,  and  all  other 

things  do  which  by  law  you  ought  to  do,  for  said  ward-.  .  ;  of  all 
which  a  true  and  perfect  account  you  shall  render  to  the  court 
of  ordinary  of  said  county,  according  to  law,  in  every  year 
during  your  continuance  in  office,  and  turn  over  the  said  assets 
to  the  permanent  guardian,  when  appointed. 

Witness  my  hand  as  ordinary,  and  seal  of  the  said  court, 
this day  of ,  19.  ... 

Ordinary. 


BOND  OF  GUARDIAN.     §3047. 


Georgia, County. 

Know  all  men  by  these  presents,  that  we, , 

principal,  and . ,  surety,  are  held  and  firmly 

bound  unto. ,  ordinary  of  said  county,  and  his 

successors  in  office,  in  the  sum  of dollars,  payable 

by  the  said ,  or  either  of  them,  their  heirs, 

executors,  administrators  or  assigns,  jointly  and  severally,  to 
be  void  on  condition  that  the  said shall  faith- 
fully' discharge  all  the  duties  of  guardianship  for  the  person 


GUARDIAN  AND  WARD  491 

and  property  of as  the  law  requires  of  him, 

otherwise  to  remain  in  full  force,  power  and  virtue. 

Witness  our  hands  and  seals,  this day  of ,  19. ... 

Principal  [L.  S.] 

Security  [L.  S.] 

Security  [L.  S.] 

Security  [L.  S.]' 

Executed  in  the  presence  of  and  approved 

by 

Ordinary County. 


LETTERS  OF  GUARDIANSHIP.     §3046. 


Georgia, County. 

To  All  Whom  it  May  Concern: 

Whereas,  Application  has  been  made  in  proper  form  for  the 

appointment  of  a  guardian  of  the  person  and  property  of 

,  a  minor  residing  in  said  county,  child  of , 

late  of  said  county,  deceased,  and has  been, 

by  order  duly  passed,  appointed  guardian,  and  has  given  the 
bond  required  and  qualified  as  such, 

Now,  know  ye,  that  the  said is,  by«  these 

presents,  authorized,  empowered  and  directed  to  receive,  collect 
and  take  charge  of  the  estate,  both  real  and  personal,  of  the 

said and  to  do  all  other  things  which  are 

required  of  him  by  law,  as  guardian  of  said  minor,  with  all  the 
authority  and  powers  usual  in  such  cases. 

Witness  my  hand  and  seal  of  office  this day 

of." ,  19 

Ordinary. 


PETITION  TO  BE  RELIEVED  AS  SURETY.     §3052. 


Georgia, County. 

To  the  Ordinary  of  said  County: 

The  petition  of ,  security  on  the  bond  given 

b} for  the  guardianship  of  the  estate  of 


492  GUARDIAN  AND  WARD 

,  shows  that  the  said desires 

to  be  relieved  as  such  security,  for  the  following  reasons,  to  wit : 
[State  misconduct  of  guardian  in  the  discharge  of  his  trust,  or 
other  reason  why  surety  desires  to  be  relieved.] 


CITATION.     $3052. 


The  foregoing  petition  of ,  security 

of ,  guardian  of ,  praying  to 

be  relieved  from  such  suretyship,  read  and  considered. 

Ordered,  that show  cause  at  the  next  term 

of  this  court,  to  be  holden  on  the day  of 

next  why  said  application  should  not  be  granted.  Let  a  copy 

of  said  petition,  and  of  this  order  be  served  upon  said 

ten  days  before  the  next  term  of  this  court. 

This day  of ,  19 

Ordinary. 


ORDER  RELIEVING  SURETY. 


Court  of  Ordinary, 

Term,  19 

A  rule  nisi  having  heretofore  duly  issued  upon  the  petition 

of ,  security  upon  the  bond  of ,.  . ., 

as  guardian  of ,  praying  to  be  relieved  from 

such  suretyship,  and  said  rule  having  been  duly  served  upon 

said after  hearing  the  evidence,     Ordered 

that  said. be  discharged  from  all  future  liability 

as  such  security  from  the  time  new  and  sufficient  security  shall 

be  furnished  by  said ,  and  said 

is  hereby  required  to  give  such  new  security  or  be  discharged 
from  his  trust. 

This day  of ,  19 


Ordinary. 


GUARDIAN  AND  WARD  493 

SALES  FOR  REINVESTMENT.     §§3064,  3065. 


PETITION  OF  GUARDIAN. 


Georgia, County. 

To  the  Hon ,  Judge  of  the  Superior  Court 

of  Said  County: 
The  petition  of shows : 

1.  That  he  is  the  guardian  of. . . ., ,  heretofore 

duly  appointed  as  such  guardian  in  said  county. 

2.  That  he  desires  to  sell  for  reinvestment  at  private  sale 
the  following  property,  the  same  being  a  part  of  the  personal 

estate  of  his  said  ward,  to  wit : 

shares  of  the  stock  of 

3.  Said  stock  pays  no  dividend,  an4  for  some  time  past  has 
paid  none,  and  is  continually  fluctuating  in  value,  on  account 

of  the  fact  that 

and  said  investment  has  become  a  precarious  one. 

4.  Petitioner  desires  to  invest  the  proceeds  of  such  sale  in 
to  wit:   [describing  them.] 

5.  Petitioner  shows  that  notice  of  his  intention  to  make  this 
application  has  been  published  once  a  week  for  four  weeks  in 

the newspaper,  being  the  newspaper  in  which 

county  advertisements  are  usually  published,  as  required  by  law. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


Notary  Public County,  Georgia. 


ADVERTISEMENT  PRELIMINARY  TO  PETITION.     §3065. 


Georgia, County. 

After  four  weeks'  notice,  pursuant  to  law,  a  petition,  of  which 
a  true  and  correct  copy  is  subjoined,  will  be  presented  to  the 

Hon ,  judge  of  the  Superior  Court,  at  the 

court  house  in  said  county,  on  the day  of , 

19 

[Attach  copy  of  petition  referred  to.] 


494  GUARDIAN  AND  WARD 

ORDER  TO  SELL.     §3065. 


At  Chambers, ,  Ga.,  .  .  .  .day  of ,  19.  ... 

The  foregoing  petition  of ,  guardian  of 

,  for  leave  to  sell  for  reinvestment  certain  of 

the  property  of  said to  wit : 

read  and  considered. 

And  it  appearing,  after  careful  examination  into  the  matter, 
and  by  evidence  other  than  the  verified  petition,  that  the  order 
prayed  for  should  be  granted. 

Ordered  that  said ,  guardian,  be,  and  he  is, 

hereby  authorized  to  sell  said  property  [here  the  order  should 
fix  the  terms,  time  and  place,  specifying  whether  the  sale  shall 
be  public  or  private,  and  whether  for  cash  or  on  credit,  etc.] 

Ordered  further,  that  he  do  make  report  of  such  investment 
as  required  by  law. 

Ordered  further,  that  these  proceedings  be  entered  on  the 
minutes  of  the  Superior  Court  of  said  county,  and  that  said 
guardian  pay  the  cost  of  these  proceedings  out  of  the  trust  funds. 

This day  of ,  19 

j.s.c..  '.'.c. 


ENCROACHMENT  ON  CORPUS.    §3060. 


PETITION  OF  GUARDIAN. 


Georgia, County. 

I'o  the  Ordinary  of  said  County: 

The  petition  of ,  guardian  of , 

respectfully  shows  that  the  property  he  holds  as  such  guardian 

of is  entirely  insufficient  for  his  maintenance 

and  education;  that  the  annual  profits  of  whole  estate  of 

in  petitioner's  hands  amounts  to  the  sum  of ....... 

dollars;  that  said necessary  annual  expenses 

amount  to. dollars ;  that  the  welfare  of  said 

and  his  best  interest  will  be  promoted  by 

selling  a  portion  of property,  and  applying  the 

proceeds  judiciously  to  the  education  and  other  necessary  ex- 
penses of  the  said 


GTTARDIAN  AND  WARD  495 

Wherefore  your  petitioner  prays  leave  to  sell  off  a  portion, 

to  wit  (here  describe  the  portion)  of  said estate 

in  his  hands  and  direction  as  to  how  the  same  shall  be  appro- 
priated. 


ORDER  TO  ENCROACH  ON  CORPUS. 


Court  of  Ordinary, 

Term,  19 

The  foregoing  petition  of ,  guardian  of 

,  read  and  considered. 

It  appearing  from  the  return  of  said ,  as 

guardian,  and  from  his  statement  made  before  me  on  oath  as 
to  the  actual  value  and  income  of  the  property  of  said ........ 

that  the  annual  profits  thereof  are  insufficient  for 

proper  support  and  maintenance,  it  is  ordered  by  this  court  that 

said  guardian  be,  and  he  is,  hereby  authorized  to  sell 

belonging  to  said  minor,  at  the  usual  time  and  place,  giving  the 
usual  notice,  and  that  he  apply  from  the  net  proceeds  of  said 

sale  the  sum  of dollars  annually  until  the  same 

is  exhausted. 

This day  of ,  19 

Ordinary. 


FINAL  EECEIPT.     §3083. 


This  is  to  certify  that ,  guardian  of  the 

undersigned ,  has  this  day  paid  over  to  said 

the  sum  of dollars,  in  cash,  and 

has  also  turned  over  to  said the  following 

property,  to  wit ,  and  said  money  and  property 

have  this  day  been  received  and  accepted  by  said 

in  full  settlement  of  all  claims  on  the  part  of  said 

against  his  said  guardian. 

In  witness  whereof,  the  said has  set  his 

hand  and  seal,  this  the day  of.  .  . ;  .  .,  19.  ... 

Signed,  sealed  and  delivered  in  presence  of 
N.  P.  and  ex-officio  J.  P County,  Ga. 


496  GUARDIAN  AND 

RESIGNATION  OF  GUARDIANSHIP.     §3085. 


PETITION. 

Georgia, County. 

To  the  Ordinary  of  said  County : 

The  petition  of ,  guardian  of , 

shows  that  he  desires  to  resign  his  trust  as  such  guardian,  for 
the  following  reasons,  to  wit:  [set  forth  the  reasons]  and  that 

,  of  said  county,  is  a  suitable  person,  willing 

to  accept  said  trust.     Wherefore  petitioner  prays  to  be  allowed 
to  resign  his  said  guardianship. 


CITATION. 

The  foregoing  petition  read  and  considered.  Ordered  that 

and ,  nearest  of  kin  of 

and ,  show  cause  before  me  at  the  next  term  of 

this  court  to  be  holden  in  and  for  said  county  on  the day 

of ,  19.  .  .  .,  why  the  relief  prayed  for  in  this 

petition  should  not  be  granted.  Let  a  copy  of  said  petition  and 
of  this  order  be  served  upon  said  named  persons  at  least  ten 
days  before  said  next  term  of  our  court 

This day  of ,  19 

Ordinary. 


ORDER  ACCEPTING  RESIGNATION. 


Georgia, County. 

Court  of  Ordinary  for  Said  County, 

Term,  19 

,  guardian  of ,  having 

filed  in  this  court  his  petition  praying  to  be  allowed  to  resign 
his  trust,  and  the  facts  alleged  in  said  petition  being  shown  to 

the  court  to  be  true,  and and , 

nearest  of  kin  to  said ,  and , 

the  person  named  in  said  petition  as  a  suitable  person,  willing 
to  accept  said  trust,  having  been  duly  cited  to  appear  as  required 
by  law,  and  the  said signifying  his  willingness 


GUARDIAN  AND  WARD  497 

to  accept  the  same,  and  this  court  being  satisfied  that  such 
change  of  guardian  will  not  be  detrimental  to  the  interests  of 
said  ward,  and  no  good  cause  being  shown  against  it,  ordered 

that  the  resignation  of as  guardian  aforesaid, 

be  accepted  as  prayed,  and  that  he  be  discharged  from  his  trust 
on  the  following  condition  viz. :  that  he  shall  forthwith  deliver 
all  property  and  pay  all  money  held  by  him  as  such  guardian, 
upon  a  fair  settlement  of  his  accounts  to  his  successor,  and  that 
he  file  with  the  ordinary  the  receipt  in  full  of  his  successor. 

And .  is  hereby  named  as  successor  to  said 

,  guardian  as  aforesaid.  Let  letters  of  guar- 
dianship issue  to  said upon  his  taking  and 

subscribing  the  oath  and  giving  bond  in  the  sum  of 

dollars. 

This day  of ,  19 

Ordinary. 


LETTERS  OF  DISMISSION.     §3086. 


PETITION  FOR  LETTERS. 


Georgia, County. 

To  the  Ordinary  of  said  County: 

The  petition  of ,  guardian  of , 

shows  to  the  court  that  he  has  fully  executed  the  trust  devolved 
on  him,  that  he  has  complied  with  all  his  legal  obligations  as 

guardian  of ,  and  prays  the  court  to  order  the 

usual  citation  to  issue,  in  order  that  he  may  obtain  letters  of 
dismission  from  such  guardianship. 


Guardian  of. 


ORDER  FOR  CITATION  TO  ISSUE. 


Court  of  Ordinary 

The  above  petition  of that  he  may  obtain 

letters  of  dismission  from  his  guardianship,  having  been  read 
and  considered  by  me,  ordered  that  the  usual  citation  issue. 

Ordinary. 


498  GUARDIAN  AND  WARD 

CITATION. 


Georgia, County. 

,  guardian  of ,  having 

applied  to  me  for  a  discharge  from  his  guardianship  of 

this  is  therefore  to  notify  all  persons  concerned  to  file 

their  objections,  if  any  they  have,  on  or  before  the  first  Monday 

in next,  else will  be  discharged 

from  his  guardianship  as  applied  for. 

Ordinary, County. 


ORDER  AUTHORIZING  LETTERS. 


Court  of  Ordinary, Term,  19.  ... 

The  petition  of ,  guardian  of , 

for  dismission  from  his  guardianship,  having  been  duly  filed, 
and  citation  issued  and  served  in  proper  time  for  disposal  at 
this  term  of  the  court,  and  it  appearing  to  the  court  from  a 

strict  examination  of returns,  accounts,  and 

vouchers,  that  he  has  fully  and  fairly  executed  his  trust  as 

guardian  of and  there  being  no  valid  objection 

offered  why  he  should  not  be  dismissed  from  his  guardianship : 

It  is  ordered  by  the  court,  That  he  be,  and  is  hereby  dis- 
charged from  said  guardianship,  and  that  letters  of  dismission, 
as  usual  in  such  cases,  be  issued  to  him. 

Ordinary, County. 


PETITION  TO  SET  ASIDE  LETTERS. 


To  the  Ordinary  of County : 

The  petition  of ,  formerly  a  ward  of 

,  a  guardian  under  the  jurisdiction  of  this  court, 

shows  to  the  court  that  at  the term,  19.  . .  .,  said 

obtained  from  your  court  an  order  of  discharge 

from  his  guardianship  of  your  petitioner,  and  a  further  order 
to  the  clerk  of  your  court  to  issue  to  him  letters  of  dismission, 
which  letters  were  duly  issued  by  said  clerk,  and  which  letters 


GUAKDJA.X    AM)    \YARD  499 

and  discharge  your  petitioner  prays  may  be  set  aside  on  the 

following  grounds,  to  wit :  that [set  out  the  facts  claimed 

to  authorize  the  setting  aside  of  the  letters  of  dismission] 

In  order  to  set  aside  such  discharge  and  letters  of  dismission, 
he  prays  that  a  rule  nisi  be  issued  by  the  court  calling  on  said 

to  show  cause  why  his  discharge  and  letters 

of  dismission  should  not  be  set  aside. 

Petitioner. 


RULE  NISI. 

Court  of  Ordinary, 

Term,  19 • 

The  above  petition  of to  set  aside  the 

discharge  granted  to ,  guardian  of , 

and  to  revoke  his  letters  of  dismission,  being  read  and  con- 
sidered, it  is  ordered  by  the  court  that  said show 

cause,  at  the  next  term  of  the  court,  why  his  said  discharge  and 
letters  of  dismission  should  not  be  set  aside  and  annulled,  for 
the  reasons  stated  in  said  petition^  and  that  a  copy  of  the  said 
petition  and  of  this  rule  be  served  on  him,  ten  days  before  the 
next  term  of  this  court. 

Ordinary. 


RULE  ABSOLUTE. 


Court  of  Ordinary, 

Term,  19 

A  rule  nisi  having  been  taken  at  the  last  term  of  this  court, 

calling  on ,  former  guardian  of , 

to  appear  at  this  court  and  show  cause  why  his  discharge  from 

his  guardianship  of  the  person  and  property  of 

should  not  be  set  aside,  and  his  letters  of  dismission  revoked, 

for  reasons  stated  in  petition  of and  it  now 

appearing  that  said  rule  has  been  properly  served,  and 

having  made  the  facts  stated  in  his  petition  fully  appear  to  the 

court,  and offering  no  sufficient  answer  to  the 

said  charge  and  evidence  adduced  in  support  thereof,  it  is  there- 


500 

fore  ordered  by  this  court  that  said  letters  of  dismission  be, 
and  the  same  are,  revoked,  and  that  this  discharge  be,  and  the 
same  is,  set  aside. 

Ordinary. 


INVESTMENT  OF  TRUST  FUNDS. 


PETITION  or  GUARDIAN  FOR  LEAVE  TO  INVEST  IN  LANDS. 

§4008. 


To  the  Honorable ,  Judge  of  Superior  Court 

County,  Ga, : 

The  petition  of ,  guardian  of , 

shows  to  the  court  that  he  has  surplus  funds  in  hand  not  neces- 
sary for  the  support  and  maintenance  of  said ; 

that  it  would  be  to  the  advantage  of to  invest 

the  same  in  land,  and  employ thereon ;  that 

the-  amount  of  said  funds  is dollars ;  therefore  he 

prays  the  court  to  allow  him  to  invest  said  sum  in  tract  of  land 
of  said 

This day  of ,  19 


Guardian  of, 


ORDER  GRANTING  PETITION. 


Office,  Judge Superior  Court. 

At  Chambers, day  of ,  19 .... 

Tlie  foregoing  petition  of ,  guardian  of 

,  to  invest dollars  surplus  funds 

of in  land,  being  read  in  this  court,  and  the 

court  being  satisfied,  from  the  facts  shown  to  it,  that  the  prayer 
of  the  petition  should  be  granted,  it  is  ordered  by  the  court  that 

the  said have  leave  to  invest  said 

dollars,  as  prayed,  having  the  title  to  the  same  executed  to  said 


This day  of ,  19 

Judge's.'  C.'.'.'.'.'.'.'.'.'.'.'.'.'.'.C. 


GUARDIAN  AND  WARD  501 

DEED  TO  MINORS  WHEN  THE  GUARDIAN  INVESTS  UNDER 
ORDER  OF  COURT. 


Georgia, County. 

This  deed,  made  this  the day  of ".  .,  19.  . . ., 

between ,  of  the  one  part,  and 

and ,  minors  of ,  of  the  other 

part,  witnesseth  that,  whereas  the  judge  of  the  superior  court 

of  said  county,  by  an  order  passed  this day  of , 

19.  .  .  .,  did  authorize ,  as  guardian  of 

and ,  to  invest  the  sum 

of dollars  in  the  purchase  of 

for  the  benefit  of  said  minors,  and  said ,  as 

such  guardian,  having  paid  me  said  sum,  now,  therefore,  in 
consideration  of  the  premises,  and  for  the  sum  aforesaid  so  paid 

me,  I,   ,  have  bargained,  granted,  sold  and 

conveyed,   and  do  by  these  presents  bargain,  grant,  sell  and 

convey  to  said and .  .  .  [describe  the  land]  .  .  .  ; 

and  the  right  and  title  of  said  land  to  said. and 

I  will  forever  warrant  and  defend.     In 

witness  whereof  I  have  hereto  set  'my  hand  and  seal. 

[L.S.] 

In  presence  of 


DEED  OF  GUARDIAN  TO  PURCHASER  AT  PUBLIC  SALE. 


Georgia, County. 

The  judge  of  the  superior  court  of  the  county  aforesaid, 

having  on  the day  of ,  19 .  .  .  . ,  ordered  the 

sale  of of ,  a  minor,  under  the 

guardianship  of ,   and ,   the 

guardian  of having  given  notice  of  such  sale 

in  the as  to  time  and  place  of  the  same,  as  the 

law  requires,  and  having  duly  exposed  said for 

sale,  in  pursuance  of  said  advertisement,  at  the  court  house  door 
of  said  county  during  the  lawful  hours  of  sale  on  the day 


502  GUARDIAN  AND  WARD 

of ,  19.  .  .  . ,  and  one ,  having 

then  and  there  bid  off [he  being  the  highest 

and  best  bidder  for  the  same],  at  the  sum  of dollars, 

to  be  paid  twelve  months  after  date;  now,  therefore,  this  deed, 

executed ,   19 .  .  .  . ,   between , 

guardian  of and ,  witnesseth  that 

said ,  as  guardian  as  aforesaid,  for  and  in 

consideration  of  the  sum  of dollars,  secured,  to  be 

paid  by  the  note  of  said and  others,  hath 

granted,  bargained,  sold  and  conveyed,  and  doth  by  these  pres- 
ents grant,  bargain,  sell  and  convey  unto  said .  .  . '. 

said so  sold  as   aforesaid    [here  describe  the 

property],  to  have  and  to  hold  the  same,  with  its  rights  and 

appurtenances ;    and   said as   such   guardian 

aforesaid,  covenants  that  in  all  respects  he  has  pursued  the  law 

in  selling In  witness  whereof  said , 

as  guardian  as  aforesaid,  hath  hereto  set  his  hand  and  seal,  day 
and  year  written  above. 

' [L.  S.] 

As  Guardian  of 

In  presence  of 


,,  J.  P. 


Bond.    Substantial  compliance  with  provisions  of  Code,  §3047,  sufficient. 

2  App.  525  (58  S.  E.  777). 
Descriptio  personae.     The  following  quoted  words  in  deed  conveying 

certain  realty  to  C.   "as  guardian   of"  F.,  minor,  are  not  merely 

descriptio  personae,  and  C.  was  created  a  trustee  for  the  minor 

named.     144/732   (1)    (87  S.  E.  1055). 
Oath.     Substantial  compliance  with  provisions  of  Code,  §3047,  sufficient. 

2  App.  525  (58  S.  E.  777). 
Petition  of  minor  suing  by  guardian  need  not  allege  when  guardian 

appointed  nor  by  what  court.     128/394  (2)    (57  S.  E.  722). 
Returns.      Pleading    attacking    duly    allowed    returns    should    specify 

items  and  grounds  of  attack.     89/656  (1)    (15  S.  E.  906). 
Settlement.     Petition  alleging  that  petitioner  is  21  years  of  age,  and 

that  defendant  was  her  guardian,  and  asking  that  defendant  be 

cited  to  appear  for  account  and  settlement,  substantially  complied 

with  Code,  §3076.     69/724   (1). 


HABEAS  CORPUS  503 

HABEAS  CORPUS. 

§§2972,  3022,  3022  (a),  4850  (1,  4) ;  1290-1316  P.  C. 
(In  case  of  wife  or  child.) 


PETITION  FOR  WRIT  AT  COMMON  LAW.     §§2972 ;  1292  P.  C. 


Georgia, County. 

To  the  Honorable ,  Judge  of  the  Superior 

Court  of  said  County: 
The  petition  of shows  the  following  facts: 

1.  Your  petitioner  is  the  legitimate  father  and  sole  surviv- 
ing parent  of ~ ,  a  female  child  of  the  age 

of years,  and ,  a  female  child  of 

the  age  of 

2.  Petitioner  shows  that  now  and  for  some  time  past  one 

of  said  county  has  taken  away  from  your 

petitioner  and  illegally  detaining  in  his  possession  and  from  the 

custody  of  your  petitioner  the  person  of  the  said 

and minor  daughters  of  your  petitioner  as 

aforesaid,  harboring  and  restraining  the  said  children  at  the 
residence  of  the  said  defendant,  in  said  county. 

3.  Petitioner  avers  that  he  did,  to  wit,  on  the day 

of - ,  19.  .  .  .,  demand  the  said  children  from  the 

said and  since  that  time  has  frequently  applied 

to  the  said for  the  same,  and  has  endeavored 

to  induce  her  to  deliver  to  your  petitioner  the  persons  of  the 
said  children. 

4.  Petitioner  avers  that  nevertheless  the  said 

fails,  neglects  and  refuses  to  deliver  said  children  to  your  peti- 
tioner as  in  duty  bound. 

5.  Petition  shows  that the  defendant,  is  the 

aunt  of  said  children,  being  the  sister  of  their  deceased  mother, 
and  the  cause  or  pretence  of  her  restraint  of  them  is  that  [state 
the  claim  of  the  defendant.] 

6.  Petitioner   avers   that   said   detention   and   restraint   of 

and his  minor  children  aforesaid, 

is  illegal,  because  he  is  the  father  of  said  children  and  entitled 
as  such  to  their  control  and  custody  and  to  their  services  and 
the  proceeds  of  their  labor,  and  he  has  not  at  any  time  by 


504  HABEAS  CORPUS 

contract  or  otherwise  released  his  right  to  said 

the  defendant  herein. 

Wherefore,  petitioner  prays  your  Honor  to  grant  to  your 
petitioner  the  State's  writ  of  habeas  corpus,  directed  to  said 

commanding  and  requiring  her  to  produce 

the  persons  of  the  said  minors,  to  wit : and 

before  your  Honor,  at  such  time  and  place  as 

to  your  Honor  shall  seem  meet  and  proper,  to  the  end  that  what 
appertains  to  justice  may  be  done. 

Petitioner's  Attorney. 


AFFIDAVIT  OF  PETITIONER.     §1293  P.  C. 


Georgia, County. 

In  person  appeared  before  the  undersigned,  a 

in  and  for  said  county, ,  the  petitioner  named 

in  the  foregoing  petition,  who  on  oath  says,  that  the  facts  stated 
in  the  above  petition  are  true. 

Sworn  to  and  subscribed  before  me  this 

day  of ,   19 

,J.P. 


FORM  OF  WRIT.    §1295  P.  C. 


Georgia, -County. 

To : 

You  are  hereby  commanded  to  produce  the  body  of 

,  alleged  to  be  illegally  detained  by  you,  together  with 

the  cause  of  the  detention,  before  me,  on  the day 

of ,  at  the ,  then  and  there 

to  be  disposed  of  as  the  law  directs. 

Given  under  my  hand  and  official  signature,  this  the 

day  of '. ..,  19 

Judge Superior  Court. 


ENTRY  OF  SERVICE  BY  OFFICER.     §1297  P.  C. 


Georgia, County. 

Served  the  within  writ  by  delivering  a  copy  thereof  to, 


HABEAS  CORPUS  505 

personally  [or  by  leaving  a  copy  thereof  at  the 

house  of where  said and 

are  now  detained.] 

This day  of ,  19 

[Official  designation.] 


ENTRY  OF  SERVICE  BY  CITIZEN. 


Georgia, County. 

comes   before   the   undersigned,   an   officer 

authorized  to  administer  oaths,  and  on  oath  says  that  on  the1 

day  of ,  19.  .  .  .f  he  served  the  defendant 

with  a  copy  of  the  within  writ,  personally 

[or  by  leaving  a  copy  thereof  at  the  house  of  said 

where  said and are  now 

detained.] 

Sworn  to  and  subscribed  before  me  this 
day  of ,   19 


[Official  designation.] 


AFFIDAVIT  FOR  SEIZURE  OF  PERSON  DETAINED.     §1298  P.  C. 


(State  the  case.) 

comes  before  the  undersigned,  an  officer  au- 
thorized to  administer  oaths,  and  on  oath  says  that  he  has  reason 
to  apprehend  that  the  defendant,  in  the  above  stated  case,  who  is 
detaining  or  holding  the  said in  custody,  will  re- 
move him  beyond  the  limits  of  the  county,  or  conceal  him  from 

the  officers  of  the  law  unless  the  body  of  the  said 

be  arrested  to  be  brought  before  the  court. 


Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 

[Official  designation.] 


506  HABEAS  CORPUS 

PRECEPT  FOR  THE  ARREST  OF  THE  BODY  OF  THE  PERSON  DE- 
TAINED.    §1298  P.  C. 


Georgia, County. 

To  the  Sheriff,  Deputy  Sheriff,  or  any  Legal  Constable  of  said 
County : 

the  applicant  for  the  foregoing  writ  of 

habeas  corpus,  having  filed,  along  with  his  petition  therefor, 

his  affidavit  that  he  has  reason  to  apprehend  that 

will  remove and beyond  the 

limits  of  the  county,  or  conceal  them  from  the  officers  of  the 
law,  you  are  hereby  commanded  to  search  for  and  arrest  the 

bodies  of and so  detained, 

and  bring  them  before  me,  to  be  disposed  of  as  I  may  direct. 

Herein  fail  not. 

Witness  my  hand  and  official  signature  this day 

of ,19 

Judge Superior  Court. 


RETURN  OF  CUSTODIAN  TO  WRIT.    §§1299,  1300  P.  C. 


}  Habeas  Corpus  before  the  Honora- 
ble  ,  Judge 
of  the  Superior  Court  of 
County. 

At  Chambers, ,  19 .... 

Now  comes ,  respondent  in  the  above  named 

and  stated  case,  and  for  answer  to  the  same,  says : 

1st.  This  respondent  admits  the  allegations  in  the  first 
Paragraph  of  plaintiff's  petition. 

2nd.  Answering  Paragraph  Two  of  said  petition,  respondent 
says  that  the  said  named  minors  have  been  in  the  custody  and 

control  of  this  respondent  since ,  19.  .  .  ., 

and  are  now  in  her  custody,  and  she  denies  that  said  custody  is 
illegal  or  unlawful  as  will  hereinafter  appear. 

3rd.  Answering  Paragraph  Three  of  petition,  this  respondent 
admits  that  petitioner  has  demanded  the  custody  of  said  minors 
and  that  she  has  refused  said  demand,  and  such  refusal  was 
based  on  the  grounds  hereinafter  set  out. 


HABEAS  CORPUS  507 

4th.  This  respondent  admits  that  she  has  refused  to  deliver 
said  children  to  petitioner,  but  denies  that  she  is  in  duty  bound 
so  to  do. 

5th.  This  respondent  admits  that  she  is  the  aunt  of  said 
children,  and  her  cause  of  their  custody  is  hereinafter  set  out. 

6th.  This  respondent  denies  the  allegation  in  Paragraph  Six 
of  the  petition,  and  for  further  plea  and  answer  thereto,  says 

that ,  the  petitioner,  delivered  said 

and to  this  respondent  when 

was  only years  old,  and only 

years  old,  in  consideration  that  this  respondent 

would  supply  the  care  and  attention  of  a  mother  of  said  children 
[respondent  being  the  aunt  of  said  children],  and  educate  and 
maintain  them  until  they  arrived  respectively  at  the  age  of 

years.  Respondent  alleges  that  she  has  faithfully 

given  all  care  and  attention  to  the  said  minors 

and since  she  received  them  into  her  family, 

and  is  both  able  and  willing  to  provide  and  care  for  them  and 
educate  them  as  she  stipulated  with  the  plaintiff  she  would  do 
when  the  said  children  were  delivered  to  her. 

Respondent  admits  the  custody  of  the  said  minors,  to  wit 

and and  now  produces  their 

bodies  before  the  court  to  be  disposed  of  according  to  law. 
This day  of ,  19 

Respondent's  Attorney. 


AFFIDAVIT  TO  RETURN.    §1300  P.  0. 


Georgia, County. 

In  person  appeared  before  the  undersigned, , 

and  on  oath  says  that  the  statements  contained  in  the  foregoing 
return  are  true. 

Sworn  to  and  subscribed  before  me  this.  .  .  . day  of .  .  .  . ,  19 .  . . 

[Official  designation.] 


508  HOMESTEAD  AND  EXEMPTIONS 

JUDGMENT  or.     §1307  P.  C. 


(State  the  case.) 

Upon  hearing  the  evidence  in  the  above  stated  case,  it  is 
considered,  ordered  and  adjudged  by  the  court,  that  the  custody 

of .  . and be,  and  the  same  is, 

hereby  awarded  to It  is  further  ordered  that 

the  costs  of  these  proceedings  be  paid  by 

It  is  further  ordered  that  these  proceedings  be  recorded  on 
the  minutes  of  the  court. 

This day  of ,  19 


HOMESTEAD  AND  EXEMPTIONS. 

§§3377-3425,  6582-6590. 
(Constitutional  Homestead.) 


APPLICATION  FOR  HOMESTEAD,  AND  EXEMPTION  OF  PEK- 

SONALTY.      §3378. 


Georgia, County. 

To  the  Ordinary  of  said  County: 

The  petition  of ,  a  resident  of  said  county, 

shows : 

First,  that  he  is  the  head  of  a  family,  consisting  of  himself, 
his  wife,  and  five  minor  children,  to  wit,  (state  names  and 
ages),  and  that  he  desires,  under  the  Constitution  of  Georgia 
and  the  statutes  in  reference  thereto,  to  have  laid  off  and  set 
apart  as  a  homestead  for  the  use  of  said  family  on  or  out 

of acres  of  land,  the  property  of  petitioner, 

situated  in  said  county,  and  described  as  follows,  to  wit: 


containing acres,  more  or  less,  a  portion  of  the 

whole  of  said acres  of  land  not  to  exceed  in  value 

dollars. 

Second.     Petitioner  also  desires  to  have  exempt  and  set  apart 
the  personal  property  embraced  in  schedule  A,  hereunto  attached, 


HOMESTEAD  AND  EXEMPTIONS  500 

to  which  reference  is  made  as  a  part  of  this  his  petition.  Said 
schedule  contains  a  minute  and  accurate  description  of  all  the 
personal  property  belonging  to  your  petitioner.  Schedule  B, 
hereunto  attached,  contains  a  correct  list  of  the  names  and  post 
offices  of  the  creditors  of  petitioner. 

Third.  Your  petitioner  prays  that  an  order  may  issue  to  the 
county  surveyor  of  said  county  requiring  him  to  lay  off  and 
make  a  plat  of  a  homestead  for  said  family  out  of  and  from 

said acres  of  land  and  make  return  thereof  in 

accordance  with  law. 

Fourth,  your  petitioner  asks  that  the  usual  notice  in  such 
cases  may  issue  and  be  published  as  required  by  law,  and  your 
petitioner  will  ever  pray. 

Petitioner. 


SCHEDULE  OF  ALL  THE  PROPERTY  BELONGING  TO 

§3378. 


at  the  time  of  making  the  foregoing 

application  for  homestead  and  exemption. 

Realty acres  of  land,  more  or  less,  a  full 

description  of  which  is  given  in  the  foregoing  petition. 


SCHEDULE  A.     (Personalty.) 


SCHEDULE  B. — LIST  OF  CREDITORS. 


Names.  Postoffice  Address. 


510  HOMESTEAD  AND  EXEMPTIONS 

i 

AFFIDAVIT  TO  PETITION. 


Georgia, County. 

In  person  comes  before  me ,  who  on  oath 

says  that  the  statements  contained  in  the  foregoing  petition  are 
true;  that  the  schedules  contain  a  minute  and  accurate  descrip- 
tion of  all  the  real  and  personal  property  owned  by  applicant, 
and  that  the  list  of  creditors  thereto  attached  is  complete,  and 
their  postoffices  correctly  given,  so  far  as  they  are  known  to 
applicant. 

Petitioner. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


Ordinary. 


OBJECTION  TO  SCHEDULE  BY  CREDITOR  OF  APPLICANT. 


Georgia, County. 

In  the  Court  of  Ordinary  of  said  County. 

And  now  comes ,  a  creditor  of , 

whose  name  appears  in  the  list  of  creditors,  and  objects  to  said 
schedule  and  now  specifies  in  writing  the  ground  of  his  objec- 
tion to  be  that  said  schedule  is  lacking  in  sufficiency  and  fulness 
in  this  [state  the  defect.] 

[Or,   for  fraud   in  the  preparation   and  rendering  of  said 
schedule  in  this — ] 

'[Or,  that  the  value  of  said  personalty  is  too  low,  being  valued 

at dollars,  when  the  same  is  well  and  reasonably 

worth  the  sum  of dollars.] 

[Or,  that  said  survey  was  not  properly  made  (stating  the 
impropriety  therein).] 

[Or,  that  the  value  of  the  premises  so  platted  as  a  homestead 

is  stated  as  estimated  to  be  of  the  value  of dollars, 

when  in  truth  and  in  fact  said  premises  are  worth  the  sum 
of dollars.] 

Wherefore,  said .  .  ., prays  that  appraisers  may 

be  appointed  to  examine  the  property  in  question,  and  to  value 


HOMESTEAD  AND  EXEMPTIONS  511 

the   same,   and  make  return  of  their  finding  under  oath   as 
required  by  law.     This day  of ,  19.  ... 

Creditor. 


APPLICATION  FOB  ORDER  TO  COUNTY  SUBVEYOR.     §3378  (4). 


Georgia, County. 

To  the  Ordinary  of  said  County: 

The  petition  of shows  that  he  has  applied 

in  terms  of  the  law  for  the  setting  apart  of  a  homestead,  which 
said -application  is  now  pending  in  said  court.  Petitioner  prays 
that  an  order  be  passed  directing  the  county  surveyor  to  lay  off 
the  homestead  of  petitioner  allowed  by  the  Constitution  of 
Georgia,  and  to  make  plat  of  the  same  as  required  by  law. 

This day  of ,  19 

Petitioner. 


ORDINARY'S  ORDER  TO  SURVEY.     §3378   (4). 


Georgia, County. 

In  the  Court  of  Ordinary  for  said  County. 
To ,  County  Surveyor  of  said  County : 

of  said  county,  having  applied  to  me  for 

the  setting  apart  of  a  homestead  under  the  Constitution  of 
Georgia,  and  the  laws  passed  in  pursuance  thereto. 

You  are  hereby  ordered  to  enter  upon  the  following  lands 

of  the  said to  wit,   [set  out  a  description  of 

the  land  as  in  the  grant  or  deed],  and  lay  off  for  a  homestead 

of  realty  for  the  said and  family  either  the 

whole  of  said  lands  or  so  much  thereof  as  will  not  exceed  in 

value  the  sum  of dollars,  and  make  a  plat  thereto, 

and  return  same  to  me,  together  with  your  estimate  of  the  value 

of  said  land  so  laid  off  by  you,  on  or  before  the day 

of ,  19 .  .  .  . ,  under  oath,  as  prescribed  by  law. 

Given  under  my  hand  and  official  seal  this day 

of !.,  19 

[SEAL]  

Ordinary  of ^  .  County. 


512  HOMESTEAD  AND  EXEMPTIONS 

NOTICE  TO  BE  SERVED  BY  APPLICANT  FOB  HOMESTEAD  AND 
EXEMPTION  UPON  EACH  CREDITOR. 


Georgia, County. 

To : 

You  are  hereby  notified  that  I  have  applied  to  the  Ordinary 
of  said  county  for  the  setting  apart  of  homestead  and  exemption 
out  of  my  property,  as  the  head  of  a  family,  for  the  benefit  of 
myself  and  family,  and  that  said  application  will  be  heard  by 

the  Ordinary  at  his  office  on  the day  of , 

19.  .  .  .,  at  nine  o'clock  A.  M.  And  I  give  you  this  notice  as 
one  of  my  creditors. 

This.  ., day  of ,  19 

Applicant. 


CERTIFICATE  AS  TO  NOTICE.    §3381. 


Notice  published,  and  written  notice  mailed  to 

as  required  by  law,  this day  of .  . .  .,  19.  . 

Ordinary. 


AFFIDAVIT  AS  TO  GIVING  NOTICE.     §3382. 


Georgia, County. 

Personally  came  before  me  the  undersigned, , 

who  upon  oath  says  that  he  has  given  notice  in  writing  to 

personally  of  the  filing  of  his  application  for 

homestead  and  exemption  and  of  the  day  of  hearing  the  same 

and  that  said  notices  were  served  by  him  on  the day 

of ,  19 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


Ordinary. 


HOMESTEAD  AND  EXEMPTIONS  513 

AFFIDAVIT  OF  PERSON  SERVING  NOTICES.     §3382. 


Georgia, County. 

Personally  before  me  came ,  who,  on  oath 

says  that  as  agent  of ,  applicant,  he  has  given 

notice  in  writing  of  the  filing  of  the  application  of 

for  homestead  and  exemption,  and  of  the  date  of  hearing  the 
same,  to  each  of  his  creditors  residing  in  the  county  personally, 

and  that  said  notices  were  all  served  on  or  before  the day 

of ,  19 

[Or,  that  deponent  served  such  notices  by  leaving  a  copy  at 
the  residence  or  house  of  business  of  his  creditors.] 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


Ordinary. 


AFFIDAVIT  OF  APPLICANT  AS   TO  PREPARATION   OF  NOTICES 

AND  FURNISHING  THE  SAME  TO  THE  ORDINARY  FOR 

CREDITORS  OUTSIDE  OF  THE  COUNTY. 


Georgia, .County. 

Personally  came  before  the  undersigned  attesting  officer,  .  .  . 

,  the  subscriber,  who,  being  duly  sworn,  on 

oath  says  that  he  is  the  applicant  for  homestead  and  exemption 
for  himself  and  family  now  pending  before  the  Ordinary,  and 

that   on   the day   of ,    19.  .  .  .,   more   than 

fifteen  days  before  the  time  set  for  the  hearing,  he  prepared 
and  delivered  to  the  Ordinary  written  notices  of  the  time  and 
place  of  hearing  of  said  application,  for  each  of  his  creditors 
residing  outside  of  the  county  and  that  he  delivered  said  notices 
to  the  Ordinary  together  with  a  stamped  envelope  for  each 
notice  for  the  purpose  of  the  Ordinary  mailing  said  notices  to 
each  of  said  creditors.  Said  creditors'  names  and  postoffice 
addresses  being  as  follows:  (here  set  out  the  names  and  post- 
office  addresses  of  the  creditors  served  in  this  way.) 

Applicant. 

Sworn  to  and  subscribed  before  me,  this 
the day   of ,    19.  ... 

Ordinary. 


514  HOMESTEAD  AND  EXEMPTIONS 

RETURN  OF  SUEVEYOR.     §3387. 


Georgia, County. 

And  now  comes ,  county  surveyor  of  said 

county,  who  on  oath  states  that  in  obedience  to  an  order  of  the 

ordinary  of  said  county,  of  date day  of , 

19.  . .  .,  to  him  directed,  he  did  on  the day  of , 

19 .  . .  . ,  proceed  to  lay  off  a  homestead  of  realty  for 

and  family  out  of  the  land  named  in  said  order.  A  correct  plat 
of  the  said  land  so  laid  off  as  a  homestead  as  aforesaid  is  hereto 
attached.  The  value  of  said  realty  platted  by  the  deponent  for 
exemption  is,  as  estimated  by  deponent dollars. 


County  Surveyor. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


Ordinary. 


APPROVAL  OF  SURVEYOR'S  RETURN  BY  ORDINARY.     §3388. 


Approved  this day  of ,  19 .... 

Ordinary  of County. 


APPOINTMENT  OF  APPRAISERS.     §3388. 


Georgia, County. 

Office  of  Ordinary  of  said  County. 
To ,    and : 

Whereas,   ,  a  creditor  of , 

whose  application  for  homestead  is  pending  before  me,  has 
made  objection  to  the  schedule,  etc.  [state  what  the  objection 
is,  as  set  out  in  the  foregoing  form],  and 

Whereas  you  are  deemed  to  be  disinterested  parties,  you  are 
hereby  appointed  to  examine  the  said  property  concerning  which 


HOMESTEAD  AND  EXEMPTIONS  515 

the  objection  is  made,  and  to  value  the  same,  and  to  make  a 
return  of  your  finding  in  reference  thereto  under  oath,  as 
required  by  law. 

Witness  my  hand  and  official  signature  this day 

of..  ,  19.. 


Ordinary. 


RETURN  OF  APPRAISERS.     §3388. 


We,  the  undersigned  appraisers,  appointed  by  the  ordinary 
as  before  set  forth,  having  examined  the  property  concerning 
which  the  objections  are  made,  find  the  value  of  the  property 

to  be dollars,  and  the  personalty  to  be 

dollars.     As  to  other  grounds  of  objections  made  we  find  [set 
out  the  finding]. 


Appraisers. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


Ordinary  of County. 


SALE  OF  HOMESTEAD  FOR  REINVESTMENT.     §3397. 


PETITION. 

+   ~~ 

Georgia, County. 

To  the  Honorable ,  Judge  of  the  Superior 

Court  of  said  County: 

The  petition  of and ,  his 

wife,  respectfully  shows — 

1.  Petitioners  are  residents  of  said  county. 

2.  Petitioners  show  that  heretofore,  to  wit,  on  the 

day  of ,   19.  . .  .,  a  homestead  in  real  property 

and  an  exemption  of  personalty  was  set  apart  to  the  said 

in  terms  of  the  law  by  the  ordinary  of  said  county. 

3.  A  copy  of  the  proceedings  under  which  said  homestead 
and  exemption  were  granted  is  hereto  attached,  marked  exhibit 
A,  and  the  same  is  made  a  part  of  this  petition. 


516  HOMESTEAD  AND  EXEMPTIONS 

4.  Petitioners  desire  that  the  homestead  so  set  apart  in  the 
land  aforesaid  be  sold  for  reinvestment,  for  the  following  rea- 
sons, to  wit 

Wherefore,  the  premises  considered,  petitioners  pray  that  an 
order  of  sale  of  the  said  property  may  be  granted,  that  proceeds 
of  said  sale  shall  be  reinvested  upon  the  same  uses,  according 
to  the  statute  in  such  cases  made  and  provided. 

This day  of ,  19 

Plaintiff's  Attorney. 


ORDER  FOR  SALE  OF  HOMESTEAD  PROPERTY. 


Georgia, County. 

Office  of  Judge  of  Superior  Court. 

At  Chambers, ,  19 .... 

The  above  and  foregoing  application  having  been  presented 
to  me,  and  after  considering  the  same,  it  is  considered,  ordered 

and  adjudged  that  the  same  be  granted,  and 

is  hereby  appointed  commissioner  to  sell  said  property  described 
in  said  petition  at  private  sale,  and  said  commissioner  shall 
report  said  sale  to  me  before  such  sale  is  perfected  for  confirma- 
tion, and  it  further  appearing  that  there  are  no  liens  upon  said 
property,  it  is  ordered  that  the  purchaser  have  and  take  said 
property  under  said  sale  in  fee  simple,  divested  of  any  right 
of  homestead  or  exemption  thereto,  and  said  commissioner  upon 
said  sale  is  ordered  to  hold  the  proceeds  of  said  sale  subject  to 
the  further  order  of  this  court  for  re-investment,  which  said  re- 
investment shall  be  for  the  same  uses  and  benefits  as  the  original 
homestead  and  so  held  by  said  family.  It  is  further  ordered 
that  said  applicant  pay  the  costs  of  this  proceeding,  and  that 
the  same  be  recorded  on  the  minutes  of  the  clerk  of  the  superior 
court.  This  the.  ....  .day  of ,  19.  ... 

Judge  of  Superior  Court. 


CONFIRMATION  OF  SALE. 


Georgia, County. 

Office  of  Judge  of  Superior  Court. 

At  Chambers, ,  19 .... 

,  commissioner  appointed  to  sell  the  home- 


HOMESTEAD  AND  EXEMPTIONS  517 

stead  property  upon   application   of .  and 

,  his  wife,  under  an  order  heretofore  made 

on  the day  of ,  19 .  .  .  . ,  having  reported  to 

me  that  he  can  sell  the  said  homestead  property  for  the  sum 

of  $ to ,  the  same  to  be  paid  in 

cash,  it  is  ordered  that  said  sale  be  and  the  same  is  hereby 

confirmed,  and  the  said ,•  commissioner,  is 

hereby  ordered  to  execute  good  and  sufficient  deed  in  fee  simple 
to  the  purchaser  of  said  property. 

•  Judge  of  Superior  Court. 


LEVY  AND  SALE  OF  HOMESTEAD — AFFIDAVIT.     §3400. 


Georgia, County. 

Before  me  the  undersigned,  an  officer  of  said  State  authorized 

to  administer  oaths,  personally  appeared , 

who  on  oath  says  that  he  is  the  plaintiff  in  execution  for  the 

sum  of .  .•. dollars,  principal,  dollars, 

interest  to  date  of  judgment,  and dollars,  cost  of 

suit,  predicated  on  a  judgment  recovered  by  deponent  against 

in  the court  of 

county,  on  the day  of ,  19.  .  .  .,  and  deponent 

is  seeking  to  proceed  with  the  same. 

That  a  homestead  of  realty  and  personalty  has  been  applied 

for  and  set  apart  out  of  the  property  of  the  said 

defendant  in  execution,  as  provided  for  in  the  Constitution  and 
laws  of  this  State. 

That  there  is  no  property  except  the  homestead  aforesaid  on 
which  to  levy. 

That  to  the  best  of  affiant's  knowledge  and  belief  the  plaintiff's 
debt  falls  within  one  of  the  classes  for  which  said  homestead  is 
bound  under  the  Constitution,  to  wit,  that  said  debt  is  for  the 
purchase-money  of  said  property  [or  otherwise,  as  the  case 
may  be.]* 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


J.  P.  of County. 


[*NOTE. — §6583  of  the  Constitution  subjects  property  set  apart  as  a 
homestead  or  exemption  "for  taxes,  for  purchase-money  of  the  same, 


518  HOMESTEAD  AND  EXEMPTIONS 

r 

V.     "" 

for  labor  done  thereon,  for  material  furnished  therefor,  or  for  removal 
of  incumbrance  thereon."] 


COUNTER  AFFIDAVIT.     §3400. 


Georgia,  .  . County. 

Personally  before  the  undersigned,  an  officer  of  said  State 

authorized  to  administer  oaths,  came ,  of  said 

county,  who  on  oath  says  that  a  certain  affidavit  made  by 

,   alleging  that  the  homestead  of  deponent  was 

subject  to  a  certain  execution  for dollars  principal, 

besides  interest  and  cost*,  predicated  on  a  judgment  rendered 

in  favor  of  said against  deponent,  in  the 

court  of county,  on  the day  of 

19.  .  .  .,  was  untrue,  in  this,  to  wit  [set  out  the  facts  showing 
the  falsity]. 

Sworn  to  and  subscribed  before  me,  this 
day  of..  , -. ,  19 


J.   P County. 


INDEMNIFYING  BOND. 


vs. 


Georgia, County. 

Fi.  fa.  issued  from court,  and 

levied  upon  the  property  of  defend- 
ant in  fi.  fa.  by and 

property  claimed  as  exempt  from 
levy  and  sale. 

We,    ,  principal,   and , 

security,   hereby   acknowledge  ourselves  jointly   and   severally 

held  and  bound  unto ,  constable  aforesaid,  in 

the  full  amount  of  whatever  damages  may  be  recovered  of  said 
by  reason  of  his  proceedings  to  sell  the  prop- 
erty levied  upon  as  aforesaid,  for  which  amount,  we  bind  our- 
selves, our  heirs,  executors  and  administrators,  firmly  by  these 
presents. 


HOMESTEAD  AND  EXEMPTIONS  519 

Witness  our  hands. and  seals,  this day  of , 

19.... 

Principal   [L.  S.] 

Security     [L.  S.] 

Executed  in  the  presence  of 


SCHEDULE  OF  EXEMPT  PROPERTY.    §§3416-3425. 
(Statutory  Homestead.) 


Georgia, County. 

To  the  Ordinary  of  said  County ': 

The  following  is  the  schedule  of  property  of , 

who  is  a  citizen  of  said  county;  a  debtor,  and  the  head  of  a 

family,  consisting  of  himself,  his  wife ,  and 

minor  children,  to  wit : aged. and 

aged ,  claimed  to  be  exempt  from  levy 

and  sale,  for  the  use  and  benefit  of  his  said  wife  and  family, 
under  the  laws  of  the  State  of  Georgia. 

1.  The  following  described  real  estate  (describe  the  land). 

2.  The  following  described  property,  which  is  in  his  posses- 
sion, to  wit:   . 


(NOTE:  The  applicant  should  set  out  and  describe  the  property 
which  he  claims  to  be  exempt.  It  is  not  enough  to  set  out  a  list  of  all 
the  property  that  the  statute  allows  him,  where  he  has  no  such 
property.  If  the  property  is  in  the  hands  of  an  officer  it  would  still  be, 
in  contemplation  of  law,  in  his  possession  to  such  an  extent  as  to 
allow  him  to  file  the  schedule,  and  claim  it  under  this  provision.) 


AFFIDAVIT  OF  APPLICANT. 


Personally  appeared ,  the  applicant  for 

exemption  above  set  out,  who,  on  oath,  says  that  the  same  is  a 

true  and  correct  schedule  of property,  which 

is  claimed  to  be  exempt  to  deponent  and  family  under  the  laws 
of  the  State  of  Georgia,  which  deponent  prays  may  be  recorded 
as  provided  by  law. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

..  J.  P. 


520  HUSBAND  AND  WIFE 

Georgia, County. 

I, ,  ordinary  of  said  county,  do  certify 

that  the  foregoing  is  the  original  schedule  of  property  of 

,  claimed  to  be  exempt  by .  .  . 

under  the  laws  of  the  State  of  Georgia,  and  the  same  is  recorded 
in  my  office. 

Given  under  my  hand  and  seal  of  office  this day 

of ,  19 

[SEAL]  

Ordinary. 


Affidavit  for  sale  of  homestead  property  must  show  that  there  is  no 
other  property  on  which  to  levy.  95/788  (23  S.  E.  79). 

Amendment  converting  proceedings  by  wife  for  exemption  of  hus- 
band's property  into  exemption  of  property  as  that  of  wife  as  head 
of  family,  not  allowed.  109/704  (35  S.  E.  139). 

Application.  Judgment  setting  apart  homestead  can  not  in  collateral 
proceeding  be  attacked  for  mere  irregularities  in  application  for 
homestead,  which  are  amendable  and  are  cured  by  judgment.  13 
App.  268  (1)  (79  S.  E.  160).  Slight  misnomer  of  partnership 
creditor  in  list  furnished  ordinary  will  not  vitiate  proceedings. 
80/595  (7  S.  E1.  135). 

Description  of  homestead  property  must  be  definite,  to  prevail  over 
title  of  bona  fide  purchaser  without  actual  notice.  1  App.  425  (58 
S.  E.  124). 

Schedule.  Amendment  of  schedule  so  as  to  include  omitted  items  of 
assignment.  145/325  .(89  S.  E.  203).  The  ordinary  is  not  re- 
quired to  enter  his  approval  on  schedule  of  property  filed  by 
debtor.  145/184  (3)  (88  S.  E.  949).  Amendment  allowed  which 
adds  to  schedule  something  omitted.  .84/199  (10  S.  E.  723). 

Survey.  Affidavit  of  surveyor  not  complying  with  statute,  and  schedule 
required  not  attached  to  application,  homestead  invalid.  135/103 
(68  S.  E.  1022).  "Northeast"  instead  of  "Northwest,"  in  return  of 
surveyor's  plat,  was  clerical  error.  101/388  (29  S.  E'.  18). 


HUSBAND  AND  WIFE.     §§2929-3011. 


MARRIAGE.     §§2929-2943. 


§2932.  (2413.)  Prohibited  degrees.  Marriages  between 
persons  related  by  affinity  in  the  following  manner  are  pro- 
hibited, viz.  :  A  man  shall  not  marry  his  stepmother,  or  mother- 
in-law,  or  daughter-in-law,  or  stepdaughter,  or  granddaughter 


HUSBAND  AND  WIFE 


521 


of  his  wife.  A  woman  shall  not  marry  her  corresponding  rela- 
tives. Marriages  within  the  degrees  prohibited  by  this  section 
are  incestuous. 


LEVITICAL  DEGREES. 


Table  of  kindred  and  affinity  wherein  whosoever  are  related 
are  forbidden  in  Scripture  and  our  laws  to  marry.  A  man  may 
not  marry  his 

1.  Grandmother. 

2.  Grandfather's  wife. 

3.  Wife's  grandmother. 

4.  Father's  sister. 

5.  Mother's  sister. 

G.  Father's  brother's  wife. 

7.  Mother's  brother's  wife. 

8.  Wife's  father's  sister. 

9.  Wife's  mother's  sister. 

10.  Mother. 

11.  Stepmother. 

12.  Wife's  mother. 

13.  Daughter. 

14.  Wife's  daughter. 
Son's  wife. 


15. 

KJ.  Sister. 

A  woman  may  not  marry  her 

1.  Grandfather. 

2.  Grandmother's  husband. 

3.  Husband's  grandfather. 

4.  Father's  brother. 
."».  Mother's  brother. 

6.  Father's  sister's  husband. 

7.  Mother's  sister's  husband. 

8.  Husband's  father's  brother. 

9.  Husband's    mothef's    bro- 

ther. 

10.  Father. 

11.  Stepfather. 

12.  Husband's  father. 

13.  Son. 

14.  Husband's  son. 

lf>.  Daughter's  husband. 

16.  Brother. 


17.  Wife's  sister. 

18.  Brother's  wife. 

19.  Sou's  daughter. 

20.  Daughter's  daughter. 

21.  Son's  son's  wife. 

22.  Daughter's  son's    wife. 

23.  Wife's  son's  daughter. 

24.  Wife's   daughter's   daugh- 

ter. 

25.  Brother's  daughter. 

26.  Sister's  daughter. 

27.  Brother's  son's  wife. 

28.  Sister's  son's  wife. 

29.  Wife's  brother's  daughter. 

30.  Wife's  sister's  daughter. 


17.  Husband's  brother. 

18.  Sister's  husband. 

19.  Son's  son. 

20.  Daughter's  son. 

24.  Son's  daughter's  husband. 

22.  Daughter's  daughter's  hus- 

band. 

23.  Husband's  daughter's  son. 

24.  Husband's  son's  son. 

25.  Brother's  son. 

26.  Sister's  son. 

27.  Brother's   daughter's   hus- 

band. 

28.  Sister's     daughter's     hus- 

band. 

29.  Husband's  brother's  son. 
.'!<).    Husband's  sister's  son. 


522  HUSBAND  AND  WIFE 

MABKIAGE  LICENSE.     §2936. 


Georgia, County. 

To  any  Judge,  Ordained  Minister  of  the  Gospel,  Justice  of  the 
Peace,  or  Other  Person  Authorized  to  Solemnize: 

You  are  hereby  authorized  and  empowered  to  join 

and in  the  holy  state  of  matrimony, 

according  to  the  Constitution  and  laws  of  this  State;  and  for 
so  doing  this  shall  be  your  sufficient  license. 

And  you  are  hereby  required  promptly  to  return  this  license 
to  me,  with  your  certificate  thereon,  of  the  fact  and  date  of 
this  marriage. 

Given  under  my  hand  and  seal  this day  of , 

19 

[SEAL.] 

Ordinary. 


CERTIFICATE. 

Georgia, County. 

I  certify  that and were 

joined  in  matrimony  by  me  this day  of ,  19*  ... 

Minister  of  the  Gospel. 

Eecorded  this  the day  of ,  19 .... 

,  Ordinary. 


DIVORCE  AND  ALIMONY.     §§2944-2991. 


FORM  OF  GROUNDS. 


MENTAL   INCAPACITY  AT   THE  TIME   OF   MARRIAGE.       §2945    (2). 


Petitioner  shows  that  at  the  time  of  the  marriage  of  the  said 

petitioner  with  the  said said was 

a  lunatic,  mentally  incapable  of  contracting  marriage. 


FORCE,    FRAUD,    ETC.'    §2945     (4). 


Petitioner  shows  that  the  said  marriage  between  petitioner 

and .  is  utterly  void,  and  without  binding  force, 

because  petitioner  did  not  consent  thereto  voluntarily  and  the 
said  pretended  marriage  was  procured  by  fraud  practiced  by  the 


HUSBAND  AND  WIFE  523 

defendant  upon  the  said  petitioner,  in  this  that  at  the  time  of 
the  said  marriage  petitioner  was  drunk,  and  his  drunkenness 
was  brought  about  by  the  contrivance  of  the  defendant  to  induce 
petitioner's  consent  thereto,  and  petitioner's  consent  was  ob- 
tained by  reason  of  said  fraud  and  drunkenness.  (§§2933, 
2935.) 


PREGNANCY  AT   THE  TIME   OF   MARRIAGE.       §2945    (5). 


Petitioner  shows  that  at  the  time  of  his  said  marriage  with 
the  defendant  as  aforesaid,  that  defendant  was  pregnant  by 
some  man  other  than  the  plaintiff  and  said  pregnancy  was 
unknown  to  the  plaintiff  at  the  time  of  the  marriage. 


DESERTION.     §2945   (7). 


Petitioner  shows  that  on  the day  -of , 

19.  .  .  .,  more  than  three  years  before  the  filing  of  this  libel, 

the  said without  just  cause  wilfully  deserted  your 

petitioner  and  has  from  the  time  of  said  desertion,  continuously 
persisted  in  the  same,  and  resided  apart  from  her. 


CONVICTION  OF  FELONY.   §2945  (8). 


Petitioner  shows  that  at  the term,  19.  .  .  .,  of  the 

Superior  Court  of county,  Georgia,  the  defendant 

was  convicted  for  an  offence  involving  moral  turpitude,  to  wit, 

of  the  offence  of and  under  such  conviction 

defendant  was  sentenced  by  the  court  to  imprisonment  in  the 
penitentiary  for  the  term  of  two  years  [or  longer,  as  the  case 
may  be]. 

§2946.  (2427.)  Discretionary  grounds.  In  case  of  cruel 
treatment  or  habitual  intoxication  by  either  party,  the  jury,  in 
their  discretion,  may  grant  either  a  total  or  partial  divorce. 


CRUEL  TREATMENT.      §2946. 


Petitioner  shows  that  she  was  very  affectionate  and  kind  to 
her  said  husband  from  the  time  of  marriage  until  the 


/>24  HUSBAND  AND  WIFE 

day  of ,  19.  .  .  .,  and  that  during  that  time  her 

said  husband  had  not  the  least  cause  to  complain  of  your  peti- 
tioner; notwithstanding  this  the  said  defendant  has  treated 
petitioner  in  a  cruel  and  inhumane  manner,  so  as  to  make  it 
impossible  for  her  to  continue  her  habitation  with  him  and  in 
consequence  thereof,  on  the  day  last  mentioned,  she  separated 
from  the  defendant  and  has  ever  since  refused  to  renew  her 
cohabitation  with  him;  petitioner  specifies  in  part,  the  acts 
constituting  the  cruel  treatment  of  the  defendant  towards  her 
as  follows:  [Describe  the  acts  of  cruelty  with  particularity, 
giving  the  time  and  place  and  circumstance  of  each.] 


HABITUAL    INTOXICATION.       §2946. 


Petitioner  shows  that  defendant,  disregarding  his  duties  to- 
ward her  as  her  husband  has  been  guilty  of  habitual  intoxication 
and  has  continued  in  a  state  of  drunkenness  for  a  period  of 

months  last  past,  during  which  said  period  he  has 

much  neglected  his  business,  frequently  absenting  himself  dur- 
ing the  entire  night  from  home,  and  while  present  in  the  home 
frequently  cursing  petitioner,  and  using  to  her  vulgar  and  coarse 
and  degraded  expressions,  often  threatening  petitioner  with 
violence,  and  for  the  most  part  failing  to  supply  the  necessaries 
of  life  for  the  use  of  petitioner  and  defendant's  children,  all 
the  result  of  habitual  intoxication  upon  the  part  of  the  de- 
fendant during  the  period  aforesaid. 


PETITION  FOR  DIVORCE.     §2951. 


Georgia, County. 

To  the  Superior  Court  of  Said  County: 

The  petition  of  Mary  Doe,  as  plaintiff,  against  John  Doe, 
as  defendant,  alleges: 

1st.     That  John  Doe  is  a  resident  of  said  county. 

2nd.  That  plaintiff  is  a  resident  of  said  county  and  State 
and  has  been  for  more  than  twelve  months  previous  to  the  filing 
of  this  suit. 

3rd.     That  on  the day  of ,  19 , 

plaintiff  and  defendant  were  married  in  said  county,  and  lived 
together  as  husband  and  wife  up  to  and  until  the .  .day 


HUSBAND  AND  WIFE  525 

of ,  19.  .  .  .,  when  and  at  which  time  the 

defendant  abandoned  and  deserted  plaintiff,  and  has  wilfully 
and  continuously  lived  separate  from  plaintiff  since  said  time 
without  any  fault  or  excuse  on  the  part  of  plaintiff. 

4th.  That  whilst  plaintiff  and  defendant  lived  together, 
plaintiff  made  defendant  a  true  and  affectionate  wife  and  gave 
him  no  cause  for  complaint. 

5th.  That  defendant  is  a  healthy,  able-bodied  man  about 
thirty  years  of  age,  is  a  carpenter  by  trade  and  is  capable  of 
earning  and  does  earn dollars  per  day  in  said  way. 

6th.  That  there  was  born  to  plaintiff  and  defendant  as  the 
issue  of  said  marriage,  one  child,  named  Henry  Doe,  now  about 
years  of  age,  and  now  in  the  custody  of  plaintiff. 

7th.  That  since  defendant  abandoned  and  separated  himself 
from  plaintiff,  he  has  not  contributed  to  the  support  of  plaintiff, 
nor  to  said  child,  and  plaintiff  has  by  her  own  wrork  had  to 
support  herself  and  said  minor. 

8th.     That  neither  plaintiff  nor  defendant  has  any  property. 

9th.  Plaintiff  asks  the  court  to  grant  her  a  divorce  from 
said  plaintiff,  and  she  also  asks  for  permanent  alimony  for  the 
support  of  herself  and  also  for  the  support  of  said  child  until 
he  is  twenty-one  years  of  age,  or  until  he  is  able  to  earn  his 
own  living.  Also,  plaintiff  asks  for  temporary  alimony  in  the 

sum  of." dollars  per  month  for  the  support  of  the 

said  child,  and  also  a  reasonable  sum  for  her  attorney's  fees 
for  her  attorneys  for  filing  and  prosecuting  this  suit,  to  wit, 
the  sum  and  amount  of dollars. 

Wherefore,  plaintiff  prays  that  process  may  issue,  requiring 

the  defendant  to  be  and  appear  at  the  next  term  of 

Superior  Court  to  answer  petitioner's  suit. 

Plaintiff's  Attorney. 

At  Chambers, ,  Ga., ,  19.  ... 

The  above  and  foregoing  petition  has  been  read  and  con- 
sidered. Let  it  be  filed  and  the  defendant  served,  and  let  him 
show  cause  before  me  at  Chambers  at  my  office  in  the  court- 
house in  the  city  of ,  at  nine  o'clock,  A.  M.,  on 

,  19 .  .  .  . ,  why  the  prayer  for  temporary  alimony 

and  counsel  fees  should  not  be  had  and  allowed. 

Judge  of  Superior  Court. 


526  HUSBAND  AND  WIFE 

FORM  OF  PROCESS. 


Mary  Doe     ")       Petition  for  divorce 

vs.  In Superior  Court, 

John  Doe       3  Term,  19 

The  defendant,  John  Doe,  is  required  personally  or  by  attor- 
ney to  be  and  appear  at  the  next  term  of Superior 

Court  to  be  held  on  the  second  Monday  in ,  19 .  .  .  . , 

then  and  there  to  answer  plaintiff's  suit,  as  in  default  thereof 
the  court  will  proceed  as  to  justice  may  appertain. 

Witness  the  Honorable ,  Judge  of  the 

Superior  Court,  this ,  19 .... 

Clerk  of  Superior  Court. 


OKDEK  OF  JUDGE  ALLOWING  ALIMONY  AND  COUNSEL  FEES. 


Office  of  Judge  of  the  Superior  Court. 
At  Chambers, ,  Ga., ,  19 .... 

Marv  Doe      1        Application  for  divorce  and  temporary 
^  I  alimony  and  -counsel  fees. 

John  Doe  In Superior    Court, 

J  lerm,  19 .... 

The  above  named  and  stated  case  coming  on  for  a  hearing, 
and  after  hearing  the  evidence  thereon  and  argument,  it  is  con- 
sidered, ordered  and  adjudged  that  the  defendant,  John  Doe,  do 

pay  to  the  clerk  of  this  court  on  or  by  the day  of 

19.  .  .  .,  and  monthly  thereafter,  until  further  order,  the  sum 
of dollars  per  month,  for  the  support  and  main- 
tenance of  Mary  Doe,  his  wife,  and  also  the  further  sum  of 
dollars  per  month  for  the  support  and  mainte- 
nance of  his  said  child,  Henry  Doe,  during  the  minority  of 
said  child,  the  said  sum  to  be  turned  over  by  the  clerk  to  Mary 

Doe,  and  also  on  said day  of to  said  clerk 

the  sum  of dollars  for  counsel  fees  for , 

and  the  remaining  sum  of  a  fee  of dollars  on  the 

day  of  the term,  19.  .  .  .,  of  this  court,  all 

of  which  is  so  ordered. 


Judge  of  Superior  Court. 


HUSBAND  AND  WIFE  527 

PETITION  FOR  RULE  ABSOLUTE  AND  ATTACHMENT. 


Georgia, County. 

To  the  Honorable ,  Judge  of  the  Superior 

Court : 

The  petition  of  Mary  Doe  shows  to  your  Honor  the  following 
facts : 

1st.     That  on  the day  of ,  19 .  .  .  . ,  your 

Honor  passed  an  order  in  the  application  of  petitioner  for 
alimony  against  her  husband,  John  Doe,  that  he  should  pay  on 

the, day  of ,  19 .  .  .  . ,  for  her  support  and 

maintenance,  the  sum  of dollars  to  the  clerk  of 

this  court,  and  also  the  further  sum  at  the  said  time  of 

dollars,  on  the day  of ,  for  the  support  and 

maintenance  of  his  said  child,  Henry  Doe.  Said  John  Doe 
was  served  with  said  petition  for  alimony  and  was  in  court  at 
the  time  said  order  was  made  and  had  notice  of  the  same.  Your 
petitioner  asks  an  order  calling  upon  the  said  John  Doe  to  show 
cause,  if  any  he  has  or  can,  why  he  has  not  paid  said  alimony, 
and  in  default  of  a  good  and  sufficient  excuse,  that  he  show 
further  cause  why  he  should  not  be  attached  for  contempt,  in 
disobeying  the  order  of  this  honorable  court. 

Attorney  for  Petitioner. 


ORDER  NISI. 

Mary  Doe     ^       Application  for  order  to  show  cause  and 

vs.  attachment  for  contempt  in 

John  Doe  Superior  Court, ,  19 ... 

The  above  and  foregoing  petition,  having  been  presented  to 
me,  and  after  consideration,  it  is  considered,  ordered  and  ad- 
judged that  the  respondent,  John  Doe,  show  cause  before  me  at 

chambers,  at  my  office  in  the  courthouse  in  the  city  of , 

on  the day  of ,  19 .  .  .  . ,   at  nine  o'clock, 

A.  M.,  why  the  prayer  of  petition  should  not  be  had  and  allowed, 
and  why  he  should  not  be  attached  for  contempt  for  his  failure 

to  obey  the  order  granted  on ,  19.  .  .  ., 

requiring  him  to  pay  alimony  as  set  out  in  said  petition.     Let 
him  be  served  at  once  with  a  copy  of  this  order. 

•Judge  of  Superior  Court. 


528  HUSBAND  AND  WlFE 

ABSOLUTE. 


Mary  Doe      "|       Order  to  show  can  so  and  attachment  for 

vs.  contempt  in Superior  Court, 

John  Doe  ,   19 

The  above  and  foregoing  case  coming  on  for  a  hearing,  and 
it  appearing  that  the  defendant  has  been  served  as  required  in 
said  order,  and  he  failing  to  show  good  and  sufficient  cause  to 
the  contrary,  it  is  ordered  that  said  rule  be  made  absolute  and 
that  the  said  John  Doe  is  in  contempt  of  this  court,  and  that 

on  his  failure  to  comply  with  said  order  of , 

19.  .  .  .,  instanter,  that  he  be  and  he  is  hereby  committed  to  the 

common  jail  of county  by  the  sheriff,  then  and 

there  to  be  safely  and  securely  kept  in  custody  until  he  complies 

with  said  order  of ,  19.  .  .  .,  and  purge  himself 

of  the  contempt  of  this  court.     The  sheriff  will  execute  this 
order.     This ,19 

Judge  of  Superior  Court. 


PETITION  FOE  DIVORCE.     §2951. 
(Another  Form.)    . 


Georgia, County. 

To  the  Superior  Court  of  said  County: 

The  petition  of .,  of  said  county,  shows: 

1.  That  on  the day  of ,  19 .  .* .  . ,  plaintiff 

and  one ,  of  said  county,  then  a  single  woman, 

intermarried  in  due  form  of  law,  to  wit,  in county, 

State  of 

(a)     That  your  petitioner   and   said lived 

together  as  husband  and  wife  until  the day  of 

19.  .  .  .,  your  petitioner  in  the  meantime  performing  all  of  the 
duties  of  a  faithful  and  affectionate 

2.  Petitioner  was  then,   and  has  been  since,  a  bona  fide 
resident  of  the  State  of  Georgia  twelve  months  next  before  the 
filing  of  this  application. 

3.  Petitioner  avers  that  heretofore,  to  wit,  on  or  about  the 

day  of ,  19.  .  .  .,  said did 

commit  the  offence  of  adultery  with  one ,  and 

that  as  soon  as  the  said  criminal  conduct  of  the  said .  , 


HUSBAND  AND  WIFE  529 

came  to  the  knowledge  of  petitioner instantly  separated 

from and  lias  not  condoned  said  offence. 

4.  That  on  divers  days  and  times  since  last  mentioned  date 
and  the  filing  of  this  action  defendant  has  committed,  adultery 
with  the  said 

5.  Petitioner  further  shows  that  the  issue  of  said  marriage 

now  living  are  one  boy  named aged years> 

and  one  girl  named aged years. 

6.  Petitioner  hereto  attaches  a  schedule  on  oath  of  all  the 
property  owned  or  possessed  by  the  plaintiff  and  defendant  at 
the  time  of  this  application  [or  at  the  time  of  the  separation,  if 
the  parties  have  separated],  which  said  schedule  distinguishes 
the  separate  property  of  the  wife. 

Wherefore,  petitioner  prays — 

(1)  That  a  total  divorce  from  defendant,  that  is  to  say  a 
divorce  a  vinculo  matrimonii  upon  legal  principles,  be  granted 
between  the  petitioner  and  the  said 

(2)  That  the  custody  of  the  two  children  above  mentioned 
be  awarded  to  petitioner. 

(3)  That  defendant  be  enjoined  from  disposing  of  and  in 
any  manner  encumbering  the  property  mentioned  in  the  schedule 
hereto  attached,  until  the  further  order  of  this  court. 

Wherefore,  petitioner  prays  that  process  may  issue  directed 

to  the  defendant  requiring to  be  and  appear 

at  the  next  Superior  Court  to  be  held  in  and  for  said  county, 
to  answer  your  petitioner's  petition  for  total  divorce. 

Petitioner's  Attorney. 


(NOTE. — If  the  petitioner  is  the  wife  and  she  desires  alimony  the 
following  clauses  may  be  added  to  the  above  petition:) 


7.  Petitioner  prays  that  the  name  which  she  bore  before  her 
marriage  to  wit .be  restored  to  her. 

8.  That  a  reasonable  provision  for  permanent  alimony  be 
made  for  her  support  and  the  support  of  the  children  above 
mentioned  out  of  the  property  of  the  defendant. 

9.  That  defendant  be  required  to  pay  a  reasonable  sum  into 
court  to  defray  the  expenses  of  this  action,  and  for  counsel  fees, 
and  that  he  pay  to  petitioner  such  further  sums  for  temporary 
alimony  for  the  support  of  herself  and  her  children  during  the 
pendency  of  these  proceedings  as  may  seem  just  to  the  court. 


530  HUSBAND  AND  WIFE 

SCHEDULE. 


Schedule  of  property  owned  and  possessed  by 

and ...."* at  the  time  of  filing  the  above  petition. 

Property  of 

[Specify  the  items.] 


Property  of 

[Specify  the  items.] 


Georgia, County. 

Personally  appeared  before  the  undersigned 

who  on  oath  says  that  the  foregoing  is  a  true  and  correct  schedule 
of  the  property  owned  or  possessed  by  the  parties  at  the  time 
of  the  application  [or  at  the  time  of  the  separation,  if  the  parties 
have  separated]. 

Sworn  to  and  subscribed  before  me  this day 

of..  ,19.. 


Clerk  Superior  Court County. 


CITATION  BY  THE  CLERK. 


(NOTE:     To   the    petition    should   be    attached    the    process,    as    in 
ordinary  cases.) 


SHERIFF'S  RETURN. 


I  have  this  day  served  the  defendant,  personally  (or  by 

leaving  a  copy  at  the  residence  of )  with  a 

copy  of  the  within  petition  and  process. 

This day  of ,  19 


Sheriff. 

[Or]  I  have  made  diligent  search  for  the  defendant  named 
in  the  foregoing  petition  and  return  that  the  defendant  does 


HUSBAND  AND  WIFE 

not  reside  in  said  county  of This, 

of ,19 


Sheriff. 


ORDER  TO  PERFECT  SERVICE. 


Petition  for   divorce   in 

Superior  Court Term,   19.  . .  . 


It  appearing  to  the  court  by  the  return  of  the  sheriff  in  the 
above  stated  case  that  the  defendant  does  not  reside  in  said 

county,  and  it  further  appearing  that does  not 

reside  in  this  State : 

Ordered  by  the  court  that  service  be  perfected  on  the  defend- 
ant by  the  publication  of  this  order  twice  a  month  for  two  months 
before-  the  next  term  of  this  court,  in  the  public  gazette  of  said 
county  in  which  sheriff's  sales  are  ordinarily  published.  This 
day  of ,  19... 

And  it  is  so  ordered. 


JudgeS.  C C. 


SERVICE  BY  PUBLICATION". 


Mary  Doe        ~}       Petition  for  divorce 

vs.  In Superior  Court, 

John  Doe  Term,    19 

To  the  defendant,  John  Doe: — 

The  plaintiff,  Mary  Doe,  having  filed  her  petition  for  divorce 
against  John  Doe,  in  this  Court,  returnable  to  this  term  of  the 
Court,  and  it  being  made  to  appear  that  John  Doe  is  not  a  resi- 
dent of  said  County,  and  also  that  he  does  not  reside  within 
the  State,  and  an  order  having  been  made  for  service  on  him, 
John  Doe,  by  publication,  this,  therefore,  is  to  notify  you,  John 

Doe,  to  be  and  appear  at  the  next  term  of Superior 

Court  to  be  held  on  the Monday  in  ..'....,  19 ...,  then 

and  there  to  answer  said  complaint. 

Witness  the  Honorable ,  Judge  of  the  Su- 
perior Court.  This ,  19.  ... 

Clerk. 


532  III  SBAND  AND  Wil'E 

ANSWER  AND  CROSS-PETITION. 


Mary  Doe         )       Petition  for  divorce 

vs.  In    Superior   Court, 

John  Doe  Term,     19 .... 

Now  comes  the  defendant  in  the  above  named  and  stated  case 
and  for  answer  therein,  says : 

1st.     Defendant  admits  the  allegations  in  Paragraph  One. 

2nd.     Defendant  admits  the  allegations  in  Paragraph  Two. 

3rd.  Defendant  admits  the  allegations  in  Paragraph  Three 
as  to  the  fact  that  plaintiff  and  defendant  were  married  and 

lived  together  until  the day  of ,  19 .  .  .  . , 

but  denies  that  he  has  wilfully  and  continuously  deserted  her 
since  that  time,  and  defendant  denies  that  said  separation  was 
without  any  fault  on  the  part  of  the  plaintiff. 

4th.     Defendant  denies  the  allegations  in  Paragraph  Four. 

5th.  Defendant  denies  that  he  is  a  healthy  and  able-bod iod 
man;  on  the  contrary,  he  alleges  that  for  the  past  three  or  four 
years  his  health  has  been  bad  and  that  during  that  time  and  up 
until  now,  he  has  been  in  failing  health  and  has  been  unable  to 
work  more  than  one-half  of  the  time.  Defendant  admits  that 
he  is  a  carpenter  and  that  during  the  time  that  he  is  able  to 
work  he  receives  $3.00  per  day  for  his  work. 

6th.     Defendant  admits  the  allegations  in  Paragraph  Six. 

7th.     Defendant  denies  the  allegations  in  Paragraph  Seven. 

8th.     Defendant  admits  the  allegations  in  Paragraph  Eight. 

9th.  Defendant  denies  that  the  plaintiff  is  entitled  to  the 
prayers  or  any  one  of  the  prayers  as  set  forth  in  Paragraph 
Nine. 

10th.  For  further  plea  in  this  behalf,  this  defendant  alleges 
that  the  defendant  is  an  habitual  drunkard ;  that  previous  to  the 
time  of  the  separation,  she  was  habitually  drunk  and  took  no 
care  and  had  no  care  for  her  household  duties  and  did  not  per- 
form them ;  that  she  gave  no  care  or  attention  to  the  said  child, 
Henry  Doe,  and  that  this  defendant  had  to  provide  for  him  by 
getting  defendant's  mother  to  care  for  him,  but  that  subsequently 
plaintiff  took  said  child  away  from  defendant's  mother  and  took 
him  into  her  own  custody;  that  plaintiff  refused  to  cook  for 
defendant  and  prepare  his  meals,  and  for  that  reason  he  had  to 
get  his  meals  elsewhere ;  that  on  the  date  of  the  alleged  separa- 
tion, the  plaintiff  assaulted  and  beat  defendant  with  a  piece  of 
stove  wood  and  cruelly  treated  him ;  that  defendant  is  afraid  to 


HUSBAND  AND  WIFE  533 

live  with  the  said  plaintiff  for  foar  that  she  will  kill  him  as  she 
has  often  threatened  to  do,  and  defendant  files  this  his  cross-bill, 
and,  upon  the  facts  and  allegations  set  out  in  this  paragraph, 
he  pravs  that  the  court  grant  him  a  total  divorce  from  the  plain- 
tiff. 

Defendant  having  fully  answered  plaintiff's  petition,  prays 
that  the  matters  hereinbefore  set  out  may  be  inquired  of  by  the 
country. 


Defendant's  Atty. 


VERDICT  A  VINCUIX).     §2957. 


(First  verdict.) 

We,  the  jury,  find  that  sufficient  proofs  have  been  submitted 
to  our  consideration  to  authorize  a  total  divorce ;  that  is  to  say, 
a  divorce  a  vinculo  matrimonii,  upon  legal  principles  between 
the  parties  in  this  case. 

This day  of ,19 


Foreman. 


(Second  verdict.) 

We  the  jury,  etc.      [Find  as  above,  and  add]  : 

We  fix  the  rights  and  disabilities  of  the  parties  as  follows: 

We  award  that  out  of  the  schedule  property 

dollars  be  allowed  to plaintiff,  as  permanent 

alimony.  We  allow  to  each  of  the  minor  children  for  their  per- 
manent support dollars  per  month  during  the  mi- 
nority of  each  child,  to  be  paid  to  their  mother,  said  plaintiff,  the 
title  of  the  balance  of  the  property  to  remain  unchanged. 

We  return  to  the  plaintiff her  former  name,  to 

wit. 

We.  further  find  that  the  petitioner  may  marry  again  but  that 
the  defendant  shall  not. 

This day  of 19 


J.  S.  C..  C. 


534  s  HUSBAND  AND  WIFE 

DECREE  OF  COURT  FOR  TOTAL  DIVORCE. 


-,.-  ^     Petition  for  total  divorce  in   Su- 

Mary  Doe  .      ~ 

"  perior  Court, 

T  T     Vv  •  Term,  19.  .      ,  and  ver- 

John  Doe  ,.  ,   ,.        ,  .   ,.~ 

j         diet  ior  plaintm. 

In  the  above  named  and  stated  case,  two  concurrent  juries 
in  this  Court,  at  different  terms,  having  found  a  verdict  for  the 
plaintiff,  granting  a  total  divorce,  it  is  considered,  ordered  and 
adjudged  by  the  Court  that  the  marriage  entered  into  between 
the  parties  heretofore,  be,  and  the  same  is  hereby,  annulled  and 
dissolved,  and  the  said  Mary  Doe  has  the  right  to  marry  again, 
and  that  the  said  John  Doe  labor  under  the  disability  of  not 
being  able  to  marry  again  as  found  by  the  jury.  Also  that  the 
plaintiff,  Mary  Doe,  have  her  name  changed  from  Mary  Doe 
to  her  maiden  name,  Mary  Roe,  as  prayed  in  the  petition;  the 
custody  of  the  minor  child,  Henry  Doe,  is  awarded  to  his 
mother.  Also  that  the  plaintiff  do  recover  of  the  defendant 

the  sum  of  $ for  permanent  alimony  for  her  own 

support  and    maintenance,    and    also    the    further    sum    of 

$ per  month  for  the  support  and  maintenance  of 

Henry  Doe  until  his  majority,  said  amount  to  be  paid  to  the 
Clerk  of  this  Court  and  by  him  paid  over  to  plaintiff  for  his 

use  on  the  first  day  of  each  month,  beginning 

19.  .  . .,  and  monthly  thereafter. 


Judge  of  Superior  Court. 

It  is  further  ordered  that  the  plaintiff,  for  the  use  of  the  offi- 
cers of  Court,  do  recover  of  the  defendant,  the  sum  of 

dollars  and cents,  cost  of  this  case.     Decree  signed 

and  entered  this  ....  day  of ,  19 


Judge  of  Superior  Court. 


VERDICT  A  MENSA. 


We,  the  jury,  find  that  sufficient  proofs  have  been  submitted 
to  our  consideration  to  authorize  a  partial  divorce  between  the 
parties;  that  is  to  say,  a  divorce  a  mensa  et  thoro.  This 
day  of ,19 

Foreman. 


HUSBAND  AND  WIFE  535 

JUDGMENT  A  MENSA. 


Whereupon,  it  is  ordered  and  decreed  by  the  court,  upon  the 
verdict  in  this  case,  that  a  divorce  a  mensa  et  thoro,  that  is  to 
say,  from  bed  and  board,  be  declared  and  established  between 
the  parties. 

It  is  further  ordered  that  the  defendant  pay  the  sum  of.  ... 

dollars  and cents,  costs  of  suit.  This 

day  of ,  19 


JudgeS.  C C. 


REMOVAL,  or  DISABILITIES.     §§2966-2969. 


PETITION.     §2966. 


GEORGIA, County. 

To  the  Superior  Court  of  Said  County: 

1.  The  petition  of shows  that  heretofore,  to 

wit,  on  the day  of ,  19-  .  .  . , 

then  the  wife  of  petitioner,  filed  her  petition  to  the  Superior 
Court  of  said  county  for  divorce,  the  same  being  made  return- 
able to  the. term,  19.  . .  .,  of  said  court. 

2.  The  grounds  alleged  for  divorce  in  said  case  were  [state 
the  grounds]. 

3.  That  after  two  concurrent  verdicts  at  different  terms  of 
the  court,  a  final  decree  of  total  divorce  was  made  in  said  suit 
at  the term,  19.  . .  .,  of  said  court. 

4.  Petitioner  shows  that  by  the  last  verdict  aforesaid  the 

marriage  relation  between and  your  petitioner 

as  to  the  said  marriage  was  totally  dissolved,  yet  the  disabilities 
of  your  petitioner  were  not  removed  and  was  so  expressed  in 
the  decree,  and  that  he  is  still  laboring  under  the  disabilities 
imposed  upon  him  by  reason  of  his  intermarriage   with  the 

said ,   who  is  still   in  life,   and   who   resides   in 

said  county. 

Petitioner  prays  that  the  disabilities  fixed  by  said  decree 
now  resting  upon,  him  under  and  by  virtue  of  said  verdict  may 
be  removed,  and  that  he  be  permitted  to  marry  again  as  if  said 
marriage  with  the  said had  never  been  solem- 
nized. 


Petitioner's  Attorney. 


536  HUSBAND  AND  WIFE 

NOTICE  OF  APPLICATION.     §2966. 


Georgia, County. 

To  the  Superior  Court  of  Said  County: 

The  petition  of  John  Doe  shows  to  the  Court  the  following 
facts : 

1st.     That  on  the day  of ,  19 , 

Mary  Doe,. the  then  wife  of  petitioner,  filed  her  suit  in  the  Su- 
perior Court  of  said  County  for  divorce  against  petitioner,  and 

that  subsequently   on    the day    of , 

19.  . .  .,  at  the  regular term  of  said  Court,  a 

second  verdict  was  obtained  in  said  case,  the  tenor  and  effect 
of  said  verdict  is  that  sufficient  proofs  have  been  submitted  to 
the  jury  to  authorize  a  total  divorce  between  the  parties  ac- 
cording to  the  legal  principles,  that  is  to  say,  a  total  divorce  a 
vinculo  matrimonii,  and  said  verdict  found  further  that  the 
said  Mary  Roe  be  allowed  to  marry  again,  but  that  petitioner 
was  left  under  disability  without  the  right  so  to  do. 

2nd.  Petitioner  further  shows  that  the  ground  for  divorce 
set  out  in  said  petition  by  Mary  Roe  was  that  petitioner  had 
wilfully  and  continuously  deserted  her. 

3rd.  Plaintiff  further  shows  that  said  Mary  Roe  is  a  resi- 
dent of  this  county,  and  petitioner  prays  that  she  be  served  with 
a  copy  of  this  petition  twenty  days  before  the  next  term  of  this 
Court,  to  which  the  same  is  returnable,  at  which  time  petitioner 
will  show  to  the  court  that  he  has  published  a  notice  of  this 
application  for  sixty  days  previous  to  said  term,  as  required  by 
the  law,  and  that  the  prayer  of  this  petition  be  granted  and  the 
disabilities  of  petitioner  be  removed  and  that  he  be  allowed  to 
marry  again.  JOHN  DOE. 


(NOTE. — Notice  of  said  application  must  be  published  for  sixty  days 
before  the  first  day  of  the  term  of  the  court  to  which  it  is  returnable, 
in  the  newspaper  in  which  the  legal  advertisements  of  the  ordinary  or 
sheriff  are  published,  stating  where  and  when  the  same  is  to  be  heard. 
If  the  divorced  person  still  lives  in  the  county  he  or  she  shall  be  served 
personally  with  notice  of  such  application  twenty  days  before  said  term. 
§2966.) 


NOTICE  TO  BE  PUBLISHED. 


Georgia, County. 

To  Whom  it  May  Concern: 

John  Doe  hereby  gives  notice  that  at  the, 


HUSBAND  AND  WIFE  537 

term  of  Superior   Court  of  said   County,   to   be   held   on   the 

Monday  in ,  19 .  .  .  . ,  he  will  apply 

to  said  Court  by  petition  to  be  relieved  of  his  disabilities  placed 
upon  him  by  the  verdict  of  the  jury  in  the  case  of  Mary  Doe  vs. 
John  Doe,  in  a  suit  for  divorce  by  Mary  Doe  against  John  Doe 

tried  at  the term,   19.  . .  .,   of  said   Court, 

wherein  a  total  divorce  was  granted  between  the  parties,  and 
petitioner,  John  Doe,  was  left  under  the  disability  of  not  being 
allowed  to  marry  again,  and  John  Doe  publishes  this  notice  as 

required    by    law.     This day    of , 

19. ..  JOHN  DOE. 


VEKDICT  OF  THE  JURY.     §2968. 


We,  the  jury,  find  in  favor  of  the  petitioner  and  that  his  dis- 
abilities be  removed  and  he  be  allowed  to  marry  again  as  prayed. 


Foreman. 


JUDGMENT.     §2968. 


Whereupon,  it  is  considered,  ordered  and  adjudged  by  the 

court  that  the  petitioner, ,  be  released 

of  the  disabilities  imposed  upon  him  by  his  intermarriage  with 

and  that  he  be  permitted  to  marry  again,  as 

though  no  marriage  had  ever  existed  between  him  and  said 


It  is  further  ordered  that  the  said pay  the 

cost  of  this  proceeding.     This day  of , 

19.. 


J.  S.  C ..C. 


PETITION  FOR  PERMANENT  AND  TEMPORARY  ALIMONY  WHERE 
No  SUIT  FOR  DIVORCE  PENDING.     §2986. 


To  the  Honorable ,  Judge  of  the  Superior 

Court  of  Said  County : — 

The  petition  of  Mary  Doe,  as  plaintiff,  against  John  Doe,  as 
defendant  shows: 

1st.     That  John  Doe  is  a  resident  of  said  county. 


538  HUSBAND  AND  WIFE 

2nd.  That  on  the day  of ,  19 , 

plaintiff  and  defendant  were  married  in  the  City  of , 

in  said  State  and  county. 

3rd.  That  plaintiff  and  defendant  lived  together  as  husband 

and  wife  until  on  or  about  the day  of , 

19.  .  .  .,  at  which  time  the  defendant  wilfully  deserted  plaintiff 
and  has  continuously  abandoned  her  since  said  time. 

4th.  That  during  the  time  they  lived  together,  plaintiff 
made  defendant  a  faithful  and  affectionate  wife,  and  defendant 
abandoned  her  without  any  cause  or  reason  on  her  part. 

5th.  That  there  was  born  to  plaintiff  and  defendant  as  the 
issue  of  said  marriage,  one  child,  Henry  Doe,  at  this  time 

years  of  age,  who  is  in  the  custody  and  possession  of 

plaintiff. 

6th.  That  defendant  is  an  able-bodied,  healthy  man, 

years  of  age;  that  he  is  capable  of  earning  and  does  earn  as  a 

railroad  engineer  the  sum  of dollars  per  month ; 

that  plaintiff  has  no  property  of  her  own  and  no  means  of  sup- 
porting said  child,  except  by  her  own  work  and  labor. 

Yth.  That  plaintiff  and  defendant  are  now  living  apart  and 
are  in  a  bona  fide  state  of  separation. 

8th.  Plaintiff  brings  this  petition  asking  for  permanent 
alimony  against  the  said  defendant  for  the  support  of  herself 

and  child,  to  wit,  the  sum  of dollars  per  month 

for  her  own  support  and  maintenance,  and  the  sum  of 

dollars  per  month  for  the  support  and  maintenance  of  said  child 
until  its  majority  or  until  it  becomes  of  sufficient  age  to  become 

self-supporting,  and  also  the  further  sum  of dollars 

as  reasonable  attorney's  fees  for  counsel  for  the  filing  and  prose- 
cution of  this  suit. 

Wherefore,  plaintiff  prays  that  process  may  issue  requiring 

the  defendant  to  be  and  appear  at  the  next  term  of 

Superior  Court,  to  answer  plaintiff's  syit,  and  also  that  an  order 
be  made  requiring  the  defendant  to  show  cause  after  proper 
notice  why  in  the  meantime  he  should  not  pay  temporary  ali- 
mony and  attorney's  fees  as  herein  prayed. 


Plaintiff's  Attorney. 


ORDER  NISI. 


At  Chambers, ,  Ga., ,  19 .... 

The  above  and  foregoing  petition  has  been  read  and  consid- 


HUSBAND  AND  WIFE  539 

ered.     Let  it  be  filed  and  let  the  defendant  be  served  and  show 

cause  before  me  at  Chambers  in  the  courthouse  at 

Georgia,  on  the day  of ,  19 .  .  .  . ,  at 

nine  o'clock,  A.  M.,  why  the  prayer  for  temporary  alimony  and 
counsel  fees  should  not  be  had  and  allowed  as  prayed. 


Judge  of  the  Superior  Court. 


(NOTE:     Process  should  be  attached  to  this  petition  in  the  regular 
way  as  in  any  other  suit  and  the  defendant  served.) 


ORDER  TO  PAY  ALIMONY  AND  COUNSEL  FEES. 


At  Chambers, ,  Ga., . ,  19 .  .  . 

"Mary  Doe         }  Application    for    temporary    alimony    in 

vs.  Superior  Court, 

John  Doe        J   ,  . ,  19 

The  above  named  and  stated  case  coming  on  for  a  hearing  for 
temporary  alimony  and  attorney's  fees,  and  after  hearing  evi- 
dence thereon,  it  is  considered,  ordered  and  adjudged  that  the  de- 
fondant,  John  Doe,  do  pay  to  the  Clerk  of  the  Superior  Court 

of County  on   or  by  the day  of , 

19.  .  .  .,  and  on  the  first  day  of  each  month  thereafter,  as  tempo- 
rary alimony  as  prayed  in  plaintiff's  petition,  the  sum  of 

dollars,  for  the  support  and  maintenance  of  Mary  Doe, 

and  also  the  further  sum  of dollars,  for  the  support  and 

maintenance  of  Henry  Doe,  the  child  of  plaintiff  and  defendant 
in  plaintiff's  custody  and  possession;  said  sums  of  money  to  be 
turned  over  when  paid  to  the  plaintiff;  and  also  the  further  sum 

of dollars  for  counsel  fees  for ,  attorney 

for  plaintiff,  for  filing  and  prosecuting  said  petition, 

dollars  of  said  counsel  fees  is  to  be  paid  to  the  Clerk  of  the  Su- 
perior Court  on  the  first  day  of  each  month,  beginning  on  the 

first  day  of ,  19 .  .  .  . ,  and  monthly  thereafter 

until  the  same  is  paid. 


Judge  of  the  Superior  Court. 


540  HUSBAND  AND  WIFE 

APPLICATION  FOR  ATTACHMENT  FOB  CONTEMPT  FOE  REFUSAL, 
TO  PAY  TEMPORARY  ALIMONY. 


-p.          1       Application    for    temporary    alimony    in 
I  Superior    Court,     and    order 

T  ,  vsYv  made . .  . ,    19 .  .  .  . ,    for 

John  Doe 

*  the  same. 

To  the  Honorable ,  Judge  of  the  Superior 

Court: — 

The  petition  of  Mary  Doe  shows  to  your  Honor  the  follow- 
ing facts: 

1st.  That  the  above  named  and  stated  case  came  on  for  a 

hearing  on  the day  of ,  19 .  .  .  . ,  and 

your  Honor  ordered  John  Doe  to  pay  to  the  Clerk  of  this  Court 

on  or  by  the  first  day  of ,  19 .  . .  . ,  the  sum 

of dollars  per  month  for  the  support  and  maintenance 

of  your  petitioner  and  also  the  further  sum  of dollars 

for  counsel  fees  for  filing  and  prosecuting  this  suit, 

dollars  of  which  was  to  be  paid  to  the  Clerk  of  the  Court  on  or 

by  the  first  day  of ,  and dollars  per 

month  thereafter  until  said  amount  is  paid.  Your  petitioner 
shows  that  said  John  Doe  has  utterly  failed  and  refused  to 
comply  with  said  order  and  still  continues  and  refuses  to  com- 
ply with  the  same. 

Wherefore,  your  petitioner  prays  an  attachment  for  contempt 
against  the  said  John  Doe,  to  show  cause  why  he  has  not  com- 
plied with  said  order,  and  in  default  of  such  just  and  proper 

cause  that  he  be  attached  for  contempt.  This day  of 

,19.... 


Attorney  for  Petitioner. 


ORDER 


Mary  Doe      ]        Application    for    temporary    alimony    in 
'  L       ............  Superior  Court,   and  order 

John  Doe  ™ade  ................  >    19"">    for 

*  the  same. 

The  above  and  foregoing  petition  has  been  read  and  consid- 
ered.    Let  the  defendant  be  served  and  let  him  show  cause  be- 
fore me  at  the  courthouse  in  ................  ,  Georgia,  on 

the  ......  day  of  ................  ,  19..  .  .,  at  nine  o'clock, 


HUSBAND  AND  WIFE  541 

A.  M'.,  or  so  soon  thereafter  as  counsel  can  be  heard  on  said 

date,  why  he  has  not  complied  with  the  order  made  on 

,  19.  .  .  .,  and  in  default  of  sufficient  excuse  and 

reason  why  he  has  not  complied  with  said  order,  let  him  then 
and  there  show  further  cause  why  he  should  not  be  attached 
for  contempt  in  failing  to  comply  with  said  order. 
This day  of ,  19 


Judge  of  the  Superior  Court. 


RULE  ABSOLUTE. 


Mary  Doe 

vs.  I"      Attachment  for  contempt. 

John  Doe 
To  the  Sheriff  or  His  Lawful  Deputy: — 

The  above  and  foregoing  matter  coming  on  for  a  hearing  be- 
fore me  this  date,  and  respondent  therein  having  been  served 
and  having  failed  to  show  any  sufficient  reason  why  he  has  not 

complied  with  the  order  of ,  19.  .  .  .,  as  set 

out  in  the  petition,  it  is  considered  and  adjudged  that  the  said 
John  Doe  is  in  contempt  of  this  Court  in  failing  and  refusing 
to  comply  with  said  order,  and  the  sheriff  is  hereby  ordered  to 
arrest  the  body  of  the  said  John  Doe  and  commit  him  to  the 

common  jail  of County,  then  and  there  to  be  kept 

until  he  complies  with  said  order  and  until  he  purges  himself 
of  this  contempt. 

This day  of ,19 


Judge  of  the  Superior  Court. 


EXEAT.     §§2986,  5459-5463. 


PETITION. 

(NOTE:  There  has  grown  to  be  a  practice  in  this  State  of  putting  in 
the  petition  for  divorce  and  alimony  a  paragraph  asking  for  the  issuing 
of  the  writ  of  ne  exeat,  and  such  writ  is  ordered  to  issue,  requiring  the 
defendant  to  give  bond  to  pay  the  judgment  rendered  in  the  case.  In 
such  case,  the  judge  has  a  right  to  require  the  defendant  to  give  bond 
not  to  remove  from  the  State,  but  he  has  no  authority  to  require  that 
the  defendant  give  bond  to  answer  the  judgment  made  in  the  case 
where  there  is  no  question  of  the  removal  of  property.  See  138/1  (74 
S.  E.  785).  If  such  a  paragraph  is  desired  it  may  be  in  the  following 
form : ) 


542  HUSBAND  AND  WIFE 

I  * 

"Plaintiff  further  shows  that  the  defendant  has  threatened 
to  leave  the  State  and  is  now  preparing  so  to  do,  and  that  un- 
less the  writ  of  ne  exeat  issues,  he  will  not  be  present  to  abide 
the  judgment  made  herein,  for  which  reason  plaintiff  prays 
your  Honor  to  grant  such  writ  requiring  the  defendant  to  be 
personally  present  and  abide  said  judgment. 


ORDER  FOR  WRIT  OF  XE  EXEAT  ON  APPLICATION  FOR  TEMPO- 
RARY ALIMONY. 


Mary  Doe     ^        Petition  for  divorce. 

vs.  In Superior  Court 

John  Doe       )        Term,  19 

The  petition  in  the  above  named  and  stated  case,  having  been 
presented  to  me,  and  after  consideration  thereof,  it  is  con- 
sidered, ordered  and  adjudged  that  the  defendant,  John  Doe, 
show  canse  before  me  at  my  office  in  the  courthouse  on  the .... 

clay  of ,  19.  .  .  .,  at  nine  o'clock,  A.  M.,  why  the 

prayer  of  petition  should  not  be  had  and  allowed,  and  tempo- 
rary alimony  and  counsel  fees  be  granted  petitioner  as  prayed. 

It  is  further  ordered  that  the  writ  of  ne  exeat  issue,  and  that 
in  default  of  a  bond  by  the  defendant  not  to  remove  beyond  the 
jurisdictional  limits  of  the  State,  and  to  be  in  court  when  re- 
quired by  its  order,  to  answer  the  judgment  therein,  that  in 
such  case  he  be  committed  to  the  common  jail  of  said  county 
there  to  be  safely  and  securely  kept  by  the  sheriff,  without  bail. 
This  the clay  of ,19 


Judge  of  Superior  Court. 


WRIT. 

Georgia, County. 

In Superior  Court. 

vs.  £•         Suit     for     Divorce,     Alimony, 
J     ~Nc  Exeat,  &c., 

To  the  Sheriff  of  Said  County  : 

For  certain  cause  made  known  to  his  Hon , 

Judge  of  the  Superior  Court  of  said  county,  in  the  complaint  of 


HUSBAND  AND  WIFE  543 

the  said  ............  against    the    said  ............  ,  he  has 

this  day  granted  an  order  requiring  that  the  defendant  should 
give  bond  and  security  in  the  sum  of  ........  dollars  not  to  re- 

move beyond  the  jurisdictional  limits  of  the  State,  and  to  be 
and  appear  when  required  by  the  order  of  the  Court  to  answer 
any  judgment  therein,  and  in  default  thereof  he  shall  be  kept 
in  your  custody  until  the  said  order  shall  have  been  complied 
with  and  be  by  you  confined  in  the  common  jail  of  said  county, 
without  bail  until  the  further  order  and  decree  of  said  court. 

You  are  therefore  commanded  to  arrest  the  body  of  the  said 
............  and  being  arrested  to  safely  keep  him  until  he 

enters  into  bond  and  security  in  the  said  sum  of  ............ 

dollars  not  to  depart  the  State  without  the  order  of  said  court 
and  to  be  and  appear  when  required  by  the  order  of  the  Court 
to  answer  any  judgment  that  may  be  made  therein,  in  default 
thereof  to  confine  him  in  the  common  jail  of  said  county  ac- 
cording to  the  statute  in  such  cases,  made  and  provided. 

Witness  the  Honorable  ................  ,  Judge  of  the  Su- 

perior Court  of  ............  County,  this  the  ......  day  of 


Clerk  Superior  Court  ..........  County. 


Alimony.  Petition  for  temporary  alimony  is  amendable  by  adding 
prayer  for  attorney's  fees.  130/365  (1)  (60  S.  E.  863).  Petition 
for  alimony  for  support  of  wife  and  family  dependent  on  husband, 
pending  divorce  suit,  may  be  filed  in  vacation.  109/465  (34  S.  E. 
562).  Amendment  alleging  voluntary  separation  properly  dis- 
allowed in  absence  of  offer  to  strike  allegation  of  petition  that 
there  was  no  voluntary  separation.  133/539  (66  S.  E.  243).  Notice 
of  proceedings  for  alimony  must  be  in  writing  with  personal  serv- 
ice; leaving  such  notice  at  place  of  abode  is  not  sufficient.  116/471 
(42  S.  E.  727). 

Divorce.  General  averment  that  defendant's  acts  of  lewdness  and  de- 
bauchery occurred  within  three  years  from  execution  of  deed,  with- 
out showing  any  reason  why  more  definite  allegation  could  not  be 
made,  was  subject  to  special  demurrer  141/448,  450  (5)  (81  S.  E. 
118).  Libel  brought  by  husband,  based  on  cruel  treatment,  held 
sufficient  to  withstand  general  demurrer,  where  it  alleged  that 
defendant  slapped  face  of  libelant,  and  would  have  done  other 
serious  violence  had  petitioner  not  held  her  by  reason  of  superior 
physical  strength,  and  that  defendant  called  petitioner  vile  names. 
145/886  (89  S.  E.  1045).  Action  on  ground  of  habitual  intoxication 
was  not  amendable  by  adding  ground  of  cruel  treatment,  though 
facts  alleged  in  amendment  same  as  those  in  petition.  112/854  (38 
S.  E.  330).  Schedule  describing  property  as  "city  lot  in  Atlanta, 
worth  $5000,"  was  sufficient  to  put  everybody  on  notice,  if  there 
be  in  fact  but  one  such  lot.  44/437. 


544  INJUNCTION 

Marriage.  Issuance  of  blank  marriage  licenses  to  one  wholly  unauthor- 
ized to  determine  rights  of  parties  to  receive  them  are  illegal,  and 
ordinary  could  not  recover  amount  received  by  such  person  for 
licenses.  69/T&4. 


INJUNCTION.     §§5490-5505. 


PETITION  FOR  INJUNCTION  AND  EQUITABLE  RELIEF. 
(See  form,  ante,  page  447.) 


Georgia, County. 

To  the  Superior  Court  of  Said  County: 

The  petition  of  John  Doe,  as  plaintiff,  against  Richard  Roe, 
as  defendant,  alleges: 

1st.     That  Richard  Roe  is  a  resident  of  said  County. 

2nd.  (Here  state  plainly,  fully  and  distinctly  in  orderly 
paragraphs  the  cause  of  complaint  and  the  ground  upon  which 
the  relief  is  sought.  It  is  better  to  have  too  many  paragraphs 
than  not  enough.  It  is  well  to  make  the  paragraphs  short  and 
pointed,  charging  some  particular  phase  of  the  case.  In  this 
way  a  defendant  may  be  required  to  answer  specifically  upon 
every  contested  point.) 

Wherefore,  to  the  end  that  justice  may  be  done,  plaintiff 
prays  the  granting  of  the  State's  most  gracious  writ  of  injunc- 
tion, directed  to  the  said  Richard  Roe,  enjoining  and  restrain- 
ing him  from  (here  set  out  the  particular  restraint  asked  for 
and  the  acts  sought  to  be  enjoined.) 

Also  that  plaintiff  have  judgment  against  the  defendant  for 
(here  set  out  what  if  any  judgment  or  relief  is  asked). 

Also  that  process  issue  requiring  the  defendant  to  be  and  ap- 
pear at  the  next  term  of  Cobb  Superior  Court  to  answer  your 
petitioner's  complaint. 


Plaintiff's  Attorney. 


VERIFICATION  OF  PETITION.     §5544. 


Georgia, County. 

Personally    came   before  the   undersigned    attesting   officer, 


INJUNCTION  545 

John  Doe,  who,  being  duly  sworn,  on  oath  says  that  the  facts 
and  things  set  out  in  the  foregoing  petition,  are  true. 

JOHN  DOE. 
Sworn  to  and  subscribed  before 

me,  this  the day  of .... 

,  19.. 


J.  P. 


[NOTE. — §5544  requires  that  the  bill  be  verified  positively  by  the 
petitioner,  or  supported  by  other  satisfactory  proofs.  If  petitioner  can 
not  verify  all  the  facts  in  the  bill  positively  he  should  distinguish  in 
his  bill  such  allegatons  of  facts  as  are  upon  his  information  and  belief, 
and  as  to  these  allegations  he  should  support  the  same  by  other  satis- 
factory proofs.] 


OEDEB  FOR  TEMPORARY  INJUNCTION. 


Office  of  Judge  of  Superior  Court. 
At  Chambers, Ga., ,  19 .... 

The  above  and  foregoing  petition  has  been  read  and  consid- 
ered. Let  it  be  filed  and  the  defendant  served,  and  let  him 
show  cause,  if  any  he  has  or  can,  before  me  at  chambers,  at 

,  Georgia,    on    the day    of , 

19.  .  .  .,  at  nine  o'clock  A.  M.,  or  so  soon  thereafter  as  counsel 
can  be  heard,  why  the  prayer  of  the  petition  should  not  be  had 
and  allowed.  Until  then  and  further  order,  the  defendant,  or 
any  one  for  him  or  acting  with  him,  is  hereby  enjoined  and 
restrained  as  prayed  in  the  petition. 


Judge  of  Superior  Court. 


AFFIDAVIT  TO  BE  USED  AS  EVIDENCE  ON  THE  HEARING  OF 
INJUNCTION. 


John  Doe       ~\      Petition  for  Injunction. 

vs.  y      In Superior  Court, 

Kichard  Roe      )  Term,  19 

Personally  came  before  the  undersigned  attesting  officer,  John 
Smith,  the  subscriber,  who,  being  duly  sworn,  on  oath  says  that 
he  makes  this  affidavit  to  be  used  on  the  hearing  of  the  injunc- 
tion in  the  above  named  and  stated  case  before  the  Honorable 


546  INJUNCTION 

,  Judge  of  the  Superior  Court,  when  and 

whenever  said  hearing  may  be-  had. 

Affiant  on  oath  says  (here  set  out  the  evidence  of  the  witness 
which  should  be  material  and  admissible  under  the  rules  of 
evidence.)  JOHN  SMITH. 

Sworn  to  and  subscribed  before 

me,  this day  of .  .  . 

,19.. 


J.  P. 


BOND  MADE  BY  PLAINTIFF  ON"  ORDER  OF  JUDGE. 


Georgia, County. 

Know  all  men  by  these  presents,  that, , 

principal,  and .  .  .  .' and ,  sureties, 

are  held  and  firmly  bound  unto. in  the  sum 

of dollars  for  the  payment  of  which  they  bind 

themselves,  each  for  himself,  and  their  heirs,  executors  and  ad- 
ministrators firmly  by  these  presents. 

Sealed  with  thdir  seals  and  dated  this day 

of ,19.... 

The  condition  of  the  above  obligation  is  such,  that  whereas, 

having  in  the  Superior  Court  of 

county  filed  his  petition  for  injunction  against  the  said 

and  having  obtained  a  grant  of  injunction,  therein, 

as  prayed  for  in  said  petition,  from  said  court.     Now,  if  the 

said should  abide  the  decision  of  the  said  court, 

and  pay  all  damages  and  costs  which  shall  be  adjudged  against 
him  in  case  the  said  injunction  should  be  dissolved  then  these 
presents  shall  be  void ;  otherwise  to  remain  of  force. 

Principal    [SEAL.] 

Security      [SEAL.] 

Security     [SEAL.] 

Taken  and  acknowledged  before  me,  this 
day  of ,   19 


Clerk  of  the  Superior  Court County. 


INJUNCTION  547 

MOTION  TO  DISSOLVE  INJUNCTION.     §5502. 


(State  the  case.) 

And  now  comes ,  the  defendant  herein 

named,  and  moves  the  court  to  dissolve  the  temporary  injunc- 
tion or  restraining  order  on  the  following  grounds,  to  wit : 

This  the day  of ,  19 

Attorney  for 


(NOTE:     Motion   to   dissolve  an   injunction   should   be  supported  by 
affidavits.) 


NISI. 


vs. 


Petition  in  Equity  in Court, 

Term,  19 

Motion  to  set  aside  the  temporary  in- 
junction and  restraining  order  here- 
tofore made  in  said  case. 

The  defendant  in  the  above  named  and  stated  case,  having 
presented  to  me  a  motion  to  set  aside  and  vacate  the  temporary 
order  heretofore  made  therein,  it  is  ordered  that  the  plaintiff  he 
served  with  a  copy  of  this  motion  and  order,  and  let  him  show 

cause  before  me  at  Chambers  in  the  city  of ,  on 

the day  of ,  19.  .  .  .,  at  nine  o'clock,  A.  M., 

why  the  said  motion  should  not  be  granted  as  prayed. 

Judge  of  Superior  Court. 


ACKNOWLEDGMENT  OF  MOTION. 


We  have  notice  of  the  above  motion,  and  waive  all  further 
or  other  notice  or  service  thereof. 

Attorney  for  Complainant. 


548  INJUNCTION 

ORDER  OVERRULING  MOTION  TO  DISSOLVE. 


(State  the  case.) 

This  case  coming  on  to  be  heard  this day  of , 

19.  .  .  .,  on  motion  of  the  defendant  to  dissolve  a  temporary 
injunction  or  restraining  order  granted  in  this  case,  it  is  ordered 
that  the  said  motion  be,  and  the  same  is,  hereby  overruled. 

This day  of ,  19 

J.  S.  G..  .  .0. 


ORDER  GRANTING  MOTION  TO  DISSOLVE  INJUNCTION  AND  SUB- 
STITUTING BONDS  FOR  INJUNCTION. 


(State  the  case.) 

This  case  coming  on  to  be  heard  this  day,  and  the  same  having 
been  duly  considered,  it  is  ordered  and  adjudged  that  said  tem- 
porary order  of  injunction  be  set  aside  upon  said  defendant 
giving  and  filing  with  the  clerk  of  this  court  a  good  and  sufficient 

bond  in  the  sum  of dollars,  conditioned  that  he 

shall  abide  the  decision  of  said  court  and  pay  all  damages  and 
costs,  which  shall  be  adjudged  against  the  said  defendant  by 
reason  of  [state  the  act  or  acts  complained  of],  and  this  bond 

to  relate  back  to  the day  of ,  19 .  .  .  . ,  when 

the  order  for  injunction  was  first  made. 

"j.'s.'c.'.  .'.ii 


MOTION  TO  VACATE  INJUNCTION  OR  RESTRAINING  ORDER. 


,.  Petition  for  Injunction  in 

Court, Term,  19 


The  motion  to  dissolve  the  restraining  order  heretofore 
granted  in  the  above  named  and  stated  case  coming  on  for  a 
hearing  this  day  before  me,  and  after  a  hearing  thereon,  it  is 
considered,  ordered  and  adjudged  that  the  said  motion  be 


INJUNCTION  549 

granted,  and  that  the  interlocutory  order  hereinbefore  granted 
in  said  case  be  set  aside  and  vacated. 

This day  of ' ,  19 


Judge  of  Superior  Court. 


ORDER  FOR  INTERLOCUTORY  INJUNCTION  AFTER  THE  HEARING. 


vs. 


Petition  for  injunction  in, 
Superior  Court, 


Term,  19 .  .  . ,  and  set  for  a  hear- 
ing on  this  the day 

.       of ,19.... 

The  application  for  an  injunction  in  the  above  named  and 
stated  case  coming  on  this  day  for  a  hearing,  and  the  petition 
therein  having  been  served,  and  the  defendant  having  appeared 
and  filed  an  answer  thereto,  and  after  hearing  evidence  and 
argument  thereon,  it  is  considered,  ordered  and  adjudged  that 
the  injunction  be  and  the  same  is  hereby  granted  as  prayed. 

This day  of ,  19 


Judge  of  Superior  Court. 


SHORT  FORM  OF  ORDER  FOR  INTERLOCUTORY  INJUNCTION. 


"j  Petition  for  injunction  in 

"I       Superior  Court,    

19 .  . .  . ,  and  set  for  a  hearing  on 
' '  J       this  the ....  day  of 19 .... 

This  case  coming  on  for  a  hearing,  it  is  considered,  ordered 
and  adjudged  that  the  injunction  be  granted  as  prayed. 
This  the day  of ,  19 

Judge  of  Superior  Court. 


Abstract  of  title  need  not  be  attached  to  petition  in  action  to  restrain 

trespass,  if  plaintiff  alleges  himself  to  be  owner.    123/323  (51  S.  E. 

416),  326  (51  S.  B.  418). 
Affidavit.     Attorney  swearing  to  petition,  that  to  his  own  knowledge 

the  recitals  of  facts  therein  are  true;  sufficient.     123/453  (3)    (51 

S.  E.  346). 


550  INSANITY  AND  LUNATICS 

Petition  need  not  allege  irreparable  damages  in  terms;  it  is  sufficient 
if  facts  set  out  show  such  damage.  126/805  (55  S.  E.  933).  Peti- 
tion to  restrain  trespass  which  does  not  contain  requisite  allega- 
tions to  come  within  Code,  §5493,  denied.  106/758  (2)  (32  S.  E. 
854).  Plaintiff,  in  proceeding  to  enjoin  trespass,  is  not  required  to 
plead  his  muniments  of  title  as  condition  precedent  to  their  intro- 
duction in  evidence.  138/646  (1)  (75  S.  E.  1051). 

Verification  of  petition  for  interlocutory  injunction  can  not  be  ques- 
tioned after  hearing  on  merits.  114/346  (40  S.  E.  231). 


INSANITY  AND  LUNATICS.    §§3089-3106. 


EXAMINATION  OF  CAPACITY  TO  MANAGE  ESTATE. 


Section  3092  of  the  Code,  as  amended  by  Act  August  14, 
1915,  (Acts  1915,  p.  20),  provides  as  follows:  "Upon  the 
petition  of  any  person,  on  oath,  setting  forth  that  another  is 
liable  to  have  a  guardian  appointed  (or  is  subject  to  be  com- 
mitted to  the  Georgia  State  Sanitarium),  the  ordinary,  upon 
proof  that  ten  days'  notice  of  such  application  has  been  given 
to  the  three  nearest  adult  relatives  of  such  person,  or  that  there 
is  no  such  relative  within  this  State,  or  where  such  notice  is 
waived  in  writing  by  such  relatives,  and  affidavit  is  made  by 
any  one  of  such  relatives  or  other  person,  that  such  person  is 
violently  insane,  and  is  likely  to  do  himself  bodily  injury,  and 
where  the  truth  of  such  affidavit  has  been  verified  in  writing 
by  a  practicing  physician  appointed  by  the  ordinary  to  examine 
such  person,  shall  issue  a  commission  directed  to  any  eighteen 
discreet  and  proper  persons,  one  of  whom  shall  be  a  physician, 
requiring  any  twelve  of  them,  including  the  physician,  to  ex- 
amine by  inspection  the  person  for  whom  guardianship  (or 
commitment  to  the  Sanitarium)  is  sought :  provided,  that  in 
all  lunacy  cases  the  legal  number  of  jurors  shall  be  six,  one  of 
whom  shall  be  a  physician,  unless  twelve  are  demanded  by  the 
party  being  tried,  or  by  some  one  of  his  relatives  or  friends ; 
and  to  hear  and  examine  witnesses  on  oath,  if  necessary,  as  to 
his.  condition  and  capacity  to  manage  his  estate,  and  to  make 
return  of  such  examination  and  inquiry  to  the  said  ordinary, 
specifying  in  such  return  under  which  such  classes  they  find 
such  person  to  come.  Such  commission  shall  be  sworn  by  any 


INSANITY   AND   LCNATICS  551 

officer  of  this  State  authorized  by  the  laws  of  this  State  to 
administer  an  oath,  well  and  truly  to  execute  said  commission 
to  the  best  of  their  skill  and  ability,  which  oath  shall  be  returned 
with  their  verdict." 


PETITION  FOR  APPOINTMENT  OF  GUARDIAN  FOR  IDIOT.    §3092. 


Georgia, County. 

To  the  Ordinary  of  said  County: 

The  petition  of shows  that , 

of  said  county,  is  an  idiot,  and  incapable  of  managing  his  own 
affairs,  and  therefore  liable  to  have  a  guardian  appointed  under 
the  law  in  such  cases  made  and  provided. 

That  the  said is  entitled  to  a  considerable 

estate,  consisting  of ,  and 

that  by  reason  of  his  idiocy  and  want  of  mental  capacity  he  is 
incapable  of  managing  his  said  estate. 

Ten  days'  notice  of  this  application  has  been  given  to  the 

three  nearest  adult  relatives  of  the  said , 

to  wit, and and 

[naming  them-],  all  of  said  county. 

Wherefore,  petitioner  prays  that  your  Honor  issue  a  com- 
mission in  terms  of  the  statute  directed  to  eighteen  discreet  and 
proper  persons,  one  of  them  being  a  physician,  requiring  any 
twelve  of  them,  including  the  physician,  to  examine  by  inspec- 
tion the  person  of  the  said ,  for  whom 

guardianship  (or  commitment  to  the  asylum)  is  sought,  and  if 
upon  examination  and  the  hearing  of  the  evidence  by  the  said 

commissioners  said should  be  found  to  be  an 

idiot,  that  your  Honor  appoint  some  discreet  person  as  guardian 
of  the  property  of  the  said 

Petitioner's  Attorney. 


Where  two  adult  and  married  daughters  instituted  proceedings  in 
court  of  ordinary,  in  accordance  with  Code,  §§3089  et  seq.,  without 
his  knowledge,  to  have  guardian  appointed  for  him,  appointment  of 
receiver  of  property  of  father  and  granting  of  injunction  against 
interference  with  property  in  receiver's  hands  was  erroneous,  in 
action  by  the  father,  where  the  children  had  no  interest  in  the 
property.  144/249  (86  S.  E'.  932). 


552  INSANITY  AND  LUNATICS 

OATH  OF  PETITIONER.     §3092. 


Georgia, County. 

Personally  appeared  before  me,  the  undersigned,  an  officer 

of  said  State  authorized  to  administer  an  oath, 

who,  being  duly  sworn,  on  oath  says  that  the  statements  con- 
tained in  the  foregoing  petition  are  true. 

Petitioner. 
Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

,J.P. 


NOTICE  TO  RELATIVES.     §3092. 


Georgia, County. 

To ,    and , 

the  three  nearest  adult  relatives  of ,  who 

is  alleged  to  be  an  idiot: 

You  are  hereby  notified  that  on  the day  of .' . , 

19.  . .  .,  I  filed  with  the  court  of  ordinary  of  said  county  a 
petition  for  a  commission  to  issue  for  the  purpose  of  inquiring 

into  the  alleged  idiocy  of for  the  purpose 

of  having  a  guardian  appointed  for  him,  and  that  the  hearing 
will  be  had  thereon  on  the day  of ,  19.  .  .  . 


Petitioner. 


V 


AFFIDAVIT  AS  TO  NOTICE. 


Georgia, County. 

Personally  came  before  the  undersigned,  a  justice  of  the  peace 

in  and  for  said  county who  being  duly  sworn, 

says  that  he  served ,    

and each  with  a  copy  of  the  above  notice  on 

the day  of ,  19 .... 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 

,J.P. 


INSANITY  AND  LUNATICS  553 

ORDER 


Office  of  the  Ordinary  of County. 

At  Chambers, ,  19 .... 

In  the  matter  of  the  petition  of for  the 

appointment  of  a  guardian  for ,  alleged  to  be 

an  idiot. 

The  above  and  foregoing  petition  having  been  presented  to 

me,  and  it  appearing  that and 

and , ,  the  three  nearest  adult  relatives  of  the 

said  alleged  idiot,  have  had  notice  of  this  application,  it  is 

ordered  that ,  the  alleged  idiot,  be  served  with 

a  copy  of  the  said  petition  and  this  order  personally  by  the 
sheriff  at  least  ten  days  before  the  hearing,  and  that  the  said 

,  alleged  idiot,  and  the  said 

and and ,  the  said  three 

nearest  adult  relatives,  show  cause  before  me  at  my  office  on 

the day  of ,  19 .  . .  . ,  at  nine  o'clock,  A.  M., 

why  the  prayer  of  the  said  petition  should  not  be  had  and 
allowed  and  a  commission  be  appointed  to  examine  into  the 

mental  condition  of  the  said ,  alleged  to  be  an 

idiot,  and  a  guardian  appointed  for  him  as  prayed. 

Ordinary. 


APPOINTMENT  OF  GUARDIAN  AD  LITEM. 


Court  of  Ordinary  of 

At  Chambers, ,  19 .... 

In  the  matter  of  the  petition  for  the  appointment  of  a  guar- 
dian for ,  alleged  to  be  an  idiot. 

The  above  named  and  stated  matter  coming  on  for  'a  hearing 
on  this  date,  and  it  being  made  to  appear  by  the  return  of  the 

sheriff  that  he  served ,  the  alleged  idiot, 

personally  with  a  copy  of  the  petition  and  the  former  order  nisi, 
calling  upon  him  and  his  three  nearest  adult  relatives  to  show 
cause  on  this  day  why  the  order  should  not  be  made  appointing 
a  commission  to  inquire  into  and  report  upon  the  alleged  inca- 
pacity of  mind  of  the  said ,  alleged  to  be  an 

Jidiot,  and  it  further  appearing  to  be  just  and  proper  that  a 

guardian  ad  litem  should  be  appointed  for  the  said , 

the  alleged  idiot,  it  is  therefore  considered,  ordered  and  adjudged 


554  INSANITY  AND  LUNATICS 

that ,  of  said  county,  be,  and  he  is,  hereby 

appointed  guardian  ad  litem  to  appear  and  represent  the  said 

,  alleged  to  be  an  idiot,  in  this  proceeding. 

Let  said  guardian  ad  litem  make  response  to  this  order. 


Ordinary. 


ACCEPTANCE  BY  GUARDIAN  AD  LITEM. 


In  person  came ,  who  has  been  appointed 

guardian  ad  litem  of ,  alleged  to  be  an  idiot, 

and  he  hereby   accepts  said   appointment   and   undertakes   to 

appear  and  represent  the  said in  the  pending 

proceeding.     This day  of ,  19.  ... 

Guardian  ad  litem. 


COMMISSION  FOR  EXAMINATION  OF  ALLEGED  IDIOT.     §3092. 


Georgia, County. 

Office  of  Ordinary. 
At  Chambers, ,  19 .... 

In  the  matter  of  the  application  of for  the 

appointment  of  a  commission  to  examine  into  and  report  upon 

the  alleged  idiocy  of ,  and  for  the  appointment 

of  guardian  for  him,  etc. 

In  the  above  named  and  stated  matter,  it  appearing  that  the 

three  nearest  adult  relatives  of  said ,  alleged 

idiot,  to  wit,    and and , 

have  had  more  than  ten  days  notice  in  writing  of  this  proceed- 
ing, and  that ,  the  alleged  idiot,  has  been 

served  with  a  copy  of  the  petition  and  order  herein  more  than 

ten  days  before  this  hearing,  and  that has  been 

appointed  guardian  ad  litem  for  the  said  alleged  idiot  and  has 
accepted  said  trust,  and  the  matter  coming  on  regularly  for  a 
hearing,  it  is  ordered  that  the  following  named  persons  be,  and 
they  are,  hereby  appointed  a  commission  to  examine  into  the 

mental  condition  of  the  said ,  alleged  idiot,  to 

inspect  his  person  and  make  proper  findings  and  report  to  me, 
and  to  constitute  said  commission,  to  wit : 


IXSAXITY  A\I>  LrxATics  555 

To ,  M.  D.,  and  to and 

(insert  the  names  of  seventeen  other  "discreet  and  proper  per- 
sons") or  any  twelve  of  you: 

You  are  hereby  required  to  examine  by  inspection  the  person 

of for  whom  guardianship  [or  commitment  to 

the  asylum]  is  sought,  and  to  hear  and  examine  witnesses  on 
oath,  if  necessary,  as  to  the  condition  and  capacity  of  the  said 

to  manage  his  estate,  the  said 

being  alleged  to  be  an  idiot.    And  after  having  made  a  thorough 
and  perfect  investigation,  touching  the  alleged  idiocy  of  the 

said you  are  directed  to  make  return  of  such 

examination  and  inquiry  to  the  ordinary  of  the'  said  county, 

specifying  in  such  your  return,  whether  or  not  the  said 

is  an  idiot,  and  under  which  class  you  find  the  said 

to  come.     Herein  fail  not. 

Given  under  my  hand  and  seal  this day  of , 

19 

~. Ordinary  (SEAL) 


JURORS  IN  LUNACY  CASES.     §3092. 


(NOTE:     In  cases  of  lunacy,  jury  shall  consist  of  six,  unless  relative 
or  party  shall  demand  twelve.) 


OATH  OF  THE  JURY.    §309: 


Georgia, County. 

You,  and  each  of  you,  do  swear  that  you  will  hear  and  duly 
execute  the  commission  to  you  directed  [touching  the  idiocy  of 

]  to  the  best  of  your  skill  and  ability.     So 

help  you  God. 


Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


Officer  authorized  to  administer  oaths. 


556  INSANITY  AND  LUNATICS 

RETURN  OF  COMMISSIONER.    §3093. 


Georgia, County. 

To ,  Ordinary  of  said  County : 

The  report  of  the  undersigned  commissioners  appointed  to 

examine  by  inspection  the  person  of of  said 

county,  alleged  to  be  an  idiot,  and  to  inquire  into  the  mental 

condition  of  the  said shows,  that  in  pursuance 

of  the  requirements  contained  in  the  commission  directed  to  them 

for  that  purpose,  to  wit,  on  the day  of ,  19 .... 

they  caused  said to  be  brought  before  them  and 

personally  examined  him  by  inspection,  and  heard  and  examined 
witnesses  on  bath  as  to  his  mental  condition  and  capacity  to 
manage  his  estate. 

That  upon  the  inspection  of  the  said as 

aforesaid,  and  the  examination  of and 

as  witnesses,  the  undersigned  commissioners  came  to  the  con- 
clusion, and  are  satisfied,  that  the  said is  an 

idiot,  and  incapable  of  managing  his  estate. 

Respectfully  submitted,  this day  of ,  19.  ... 


[NOTE. — The  physician  and  at  least  eleven  of  the  commissioners 
should  sign  said  report.  The  finding  should  show  whether  the  person 
examined  is  a  lunatic,  insane,  an  idiot,  or  habitual  drunkard,  if  either 
one  of  them  is  his  true  condition.] 


ORDER  THEREUPON. 


Georgia, County. 

In  re ,  alleged  to  be  an  idiot. 

It  appearing  to  the  court  by  the  return  of  the  commissioners 

appointed  to  examine  into  the  idiocy  of of 

said  county,  that  said is  an  idiot : 

It  is  further  ordered  that of  said  county, 

be,  and  he  is,  hereby  appointed  guardian  of  the  person  and 
property  of  the  said 

And  it  is  further  ordered,  that  letters  of  guardianship  do 

issue  to  said upon  his  taking  the  oath  and 

giving  bond  and  security  as  in  such  cases  made  and  provided. 
This day  of ,  19 

Ordinary. 


INSANITY  AND  LUNATICS  557 

APPLICATION   FOR  APPOINTMENT  OF  GUARDIAN  FOR  PERSON 

UNABLE  TO  MANAGE  His  PROPERTY  OR  FOR  ONE  LIABLE 

TO  BE  SENT  TO  STATE  SANITARIUM. 


Georgia, County. 

To  the  Ordinary  of  said  County : 

The  petition  of .  .  .,  of  said  county,  alleges  the 

following  facts: 

1st.     That ,  of  said  county,  hereinafter 

called  respondent,  is  liable  on  account  of  mental  incapacity  to 
have  a  guardian  appointed  for  him  and  to  be  sent  to  the  State 
Sanitarium. 

2nd.    That  respondent  is  possessed  of  real  and  personal  prop- 
erty of  the  value  of dollars,  and  on  account  of  his 

mental  condition  the  same  is  going  to  waste  and  he  is  unable  to 
manage  and  take  care  of  it. 

3rd.     That and and 

of  said  county,  are  the  three  nearest  adult 

relatives  of  the  said  respondent,  and  petitioner  prays  that  after 
ten  days  notice  to  said  nearest  adult  relatives  and  after  service 
upon  the  respondent,  that  your  Honor  appoint  a  commission  of 
eighteen  persons,  one  of  whom  shall  be  a  practising  physician, 
who  by  a  personal  inspection  of  the  person  of  said  respondent, 
and  after  hearing  evidence  as  to  the  mental  condition  of  the  said 
respondent,  to  make  a  finding  and  report  the  facts  to  your 
Honor,  and  that  a  guardian  be  appointed  for  the  said  respondent, 
and  such  other  proceedings  be  had  in  the  premises  as  are  in 
conformity  to  law. 


Petitioner. 


AFFIDAVIT  TO  PETITION. 


Georgia, County. 

Before  me, ,  ordinary  of  said  county, 

personally  came ,  the  subscriber,  who,  being 

duly  sworn,  on  oath  says  that  the  facts  and  things  stated  in  the 
foregoing  petition,  are  true. 

Sworn  to  and  subscribed  before  me,  this 
.  .day  of ,  19 

Ordinary. 


558  INSANITY  AND  LUNATICS 

ORDER  NISI. 


In  the  matter  of  the  petition  of for  the 

appointment  of  a  guardian  for ,  and  other 

prayers. 

Court  of  Ordinary, 

At  Chambers, ,  19 .... 

The  foregoing  petition  has  been  read  and  considered.     Let  it 

be  filed  and  let ' ,  the  respondent,  and 

t , and ,  the 

three  nearest  adult  relatives,  show  cause  before  me  at  my  office 

on  the day  of ,  19 .  .  .  . ,  why  the  prayer  of 

petition  should  not  be  had  and  allowed,  and  why  the  commission 

should  not  be  appointed  as  prayed.     Let , 

respondent,  be  served  by  the  sheriff  with  a  copy  of  the  petition 
and  this  order  at  least  ten  days  before  said  hearing,  and  the 
said  three  nearest  adult  relatives  given  ten  days  notice  in  writing 
of  the  time  and  place  of  the  said  hearing,  which  notice  may  be 
given  by  delivering  to  each  of  said  nearest  adult  relatives  in 
person  a  copy  of  the  petition  and  this  order. 

Ordinary. 


ORDER   FOR    APPOINTMENT    OF    GUARDIAN    AD    LITEM    AFTER 

PERSONAL  SERVICE  UPON  ALLEGED  INSANE  PERSON 

BY  SHERIFF. 


Court  of  Ordinary. 

At  Chambers, ,  19 .... 

In  the  matter  of  the  petition  of for  the 

appointment  of  a  guardian  for ,  and  the 

appointment  of  commission  to  examine  his  mental  condition. 

In  the  above  named   and  stated  matter,   it   being  made  to 

appear  that ,  the  respondent  therein,  has  been 

served  personally  with  a  copy  of  the  petition  and  order  in  the 
above  named  and  stated  case  calling  upon  him  to  show  -cause 
on  this  date  as  to  why  a  commission  should  not  be  appointed  to 
examine  him  as  to  his  mental  condition  and  capacity  to  manage 
his  affairs  and  as  to  why  he  should  not  be  committed  to  the 
Sanitarium  and  it  appearing  that  he  has  been  served  by  the 
sheriff  with  a  copy  of  said  petition  and  the  said  order  nisi  more 
than  ten  days  before  this  hearing,  and  it  further  appearing 


INSANITY    AND    LUNATICS  559 

that ,    and , 

his  three  nearest  adult  relatives,  have  also  had  more  than  ten 
days  notice  of  this  proceeding  and  the  time  and  place  of  hear- 
ing, and  that  it  is  necessary  and  proper  that  a  guardian  ad  litem 

be  appointed  for  the  said respondent,  to 

represent  him  in  this  proceeding,  it  is  considered,  ordered  and 

adjudged  that '.  .is  hereby  appointed  guardian 

ad  litem  to  appear  for  and  represent,  the  said , 

respondent,  upon  this  hearing  of  said  proceeding.  Let  the  said 
guardian  ad  litem  be  notified  and  make  proper  response  to  this 
order.  This day  of ,  19 .... 

Ordinary. 


ORDER  FOR  COMMISSION  TO  ISSUE. 


Court  of  Ordinary Chambers,  19 .... 

Upon  hearing  the  foregoing  petition,  duly  filed,  and  it  appear- 
ing that  the  notice  of  the  same  required  by  law  has  been  given, 
and  no  reason  being  offered  to  the  contrary,  it  is  ordered  that 
the  usual  commission  issue,  directed  according  to  law. 

,  Ordinary. 


COMMISSION. 

Georgia, County. 

To   1 ,  M.  D.  10 

2 11 

3 12 

4 13 

5 14 

6 15 

7 16 

8 17 : 

9 18 

Greeting: 

having  made  petition,  on  oath,  to  the 

ordinary  of  said  county,  alleging  that ,  of  said 

county,  is and  is  subject  to  be  committed   to 


560  INSANITY  AND  LUNATICS 

the  Georgia  State  Sanitarium,  you  are  hereby  required,  or  any 
twelve  of  jrou  (one  of  whom  must  be  a  physician),  after  first 
being  duly  sworn  well  and  truly  to  execute  this  commission  to 

the  best  of  your  skill  and  ability,  to  have  the  said 

personally  brought  before  you,  to  examine 

by  inspection,  and  to  hear  and  examine  witnesses  on  oath,  if 

necessary,  as  to condition,  and  to  make  return 

of  such  examination  and  inquiry  to  the  said  ordinary,  specifying 

in  said  return  under  which  class  you  find  the  said 

to  come. 

Witness  my  hand  and  seal,  this  the.  . .  . day  of ,  19 .  . 

[SEAL]  ,  Ordinary. 


NOTICE  OF  HEARING. 


Court  of  Ordinary,  at  Chambers. 

To : 

You  are  hereby  notified  that  on  the day  of , 

19.  . .  .,  the  case  of vs , 

charged  as  a  lunatic,  will  be  heard  by  the  commissioners  ap- 
pointed by  the  court.     This day  of ,  19 .... 


Commissioners. 


VENIRE  FACIAS. 


Georgia, County. 

To  the  Sheriff  of  said  County  or  his  Deputies : 

You  are  hereby  commanded  to  summon  a  jury  of  eighteen 
men  named  in  the  annexed  commission  (one  of  whom  must  be 

a  practicing  physician),  and  cause  them  to  assemble  at 

county   aforesaid,   at o'clock on the .... 

day  of ,  19 .  .  .  . ,  then  and  there  to  execute  said 

commission  and  make  return  thereof. 

This  the day  of ,  19 

,  Ordinary. 


INSANITY  AND.  LUNATICS  561 

AFFIDAVIT  OF  JUEOES. 


County. 

We,  and  each  of  us,  do  swear  that  we  will  well  and  truly 
execute  this  commission  to  the  best  of  our  skill  and  ability. 


Sworn  to  and  subscribed  before  me,  this day 

of ,19 

,  Ordinary. 


FINDING  OF  JURY. 


Georgia, County. 

To  the  Ordinary  of  said  County : 

By  virtue  of  the  annexed  commission  to  us  directed,  we,  the 
undersigned,  first  being  sworn  and  having  made  such  examina- 
tion by  inspection  and  proof  as  the  law  requires,  report  that  we 

do  find  the  said to  be  a and 

a  fit  subject  for  the  Sanitarium ;  and  having  on  the  trial  inquired 

into  the  fact  of  the  residence  of  the  said 

we  further  find  that was,  at  and  before  the 

said  trial,  and  still  is,  a  resident  citizen  of  the  State  of  Georgia, 
and  not  introduced  into  the  State  or  county  for  the  purpose  of 
being  sent  to  the  Georgia  State  Sanitarium. 

This day  of ,  19 


JUDGMENT. 

Court  of  Ordinary,  Chambers, ,  19. ... 

Whereupon,  it  is  considered,  ordered  and  adjudged  that  the 
said is  a or  person  of  unsound 


562  INSANITY  AND  LUNATICS 

mind,  and  that  as  such be  committed  to  the 

Georgia  State  Sanitarium  and  there  confined  until  discharged 
according  to  law. 

APPLICATION  OF  PERSON  RESTORED  TO  SANITY.    §3097. 


Georgia, County. 

To  the  Ordinary  of  said  County : 

1.  The  petition  of .  .  .of  said  county,  shows 

that  your  petitioner  was  heretofore,  to  wit,  on  the day 

of ,  19 .  .  .  . ,  declared  to  be  of  insane  mind, 

according  to  proceedings  of  record  in  said  county  in  said  court 
of  ordinary,  and  therefore  unable  to  manage  his  affairs. 

2.  That  letters  of  guardianship,  dated  the  day  and  year 

aforesaid,  issued  to ,  of  said  county,  as 

guardian  of  the  person  and  property  of  your  petitioner. 

3.  That  said ,  by  virtue  of  said  letters  of 

guardianship,  has  had  possession  of  your  petitioner's  person  and 
property  from  the  date  of  said  letters  of  guardianship  from 
thence  hitherto. 

4.  Petitioner  avers  that  he  has  been  restored  to  sanity  and 
capacity,  so  as  to  be  capable  of  managing  his  own  estate. 

Wherefore,  your  petitioner  prays  that  he  may  be  examined 
as  to  his  present  sanity,  and  his  capacity  to  manage  his  affairs. 

Petitioner  further  prays  that  said  letters  of  guardianship, 

issited  to  said as  aforesaid,  may  be  canceled 

and  revoked,  and  that  said may  be  ordered  and 

required  forthwith  to  deliver  over  to  your  petitioner  all  prop- 
erty, money  and  effects  belonging  to  petitioner  in  his  hands  as 
guardian.  This day  of ......  19 .... 

Petitioner's  Attorney. 


REVOCATION  OF  LETTERS  OF  GUARDIANSHIP.  §3097. 


NOTICE   TO   GUARDIAN. 


Georgia, County. 

To ,  Guardian  of : 

Take  notice  that  I  shall  apply  to  the  court  of  ordinary  of 
said  county,  at  the  next  ensuing  term  thereof,  to  be  held  on 

the day  of ,  19.  .  .  .,  for  the  purpose  of 

having  the  letters  of  guardianship  heretofore  issued  to  you  by 


INSANITY  AND  LUNATICS  563 

said  court,  appointing  you  my  guardian  [having  been  heretofore 
adjudged  to  be  an  insane  person]  canceled  and  revoked. 
This day  of ,  19 

Petitioner. 


ISSUE.     §3098. 


Georgia, County. 

And  now  at  this  term  of  the  court  comes , 

guardian  of ,  by  his  attorney , 

and  controverts  the  averments  in  said  petition,  and  says  that 

has  not  been  restored  to  sanity  and  capacity, 

and  still  continues  to  be  of  insane  mind,  and  wholly  incapable 
of  managing  the  affairs  of  his  estate. 

And  of  this  the  defendant  puts  himself  upon  the  country. 

This day  of ,  19 

Defendant's  Attorney. 


PRECEPT  FOE  SUMMONING  JURY.     §3098. 


Georgia, County. 

To  the  Sheriff  of  said  County  and  his  lawful  Deputy : 

You  are  hereby  commanded  and  required  to  summon  [insert- 
ing the  names  of  eighteen  persons,  one  of  them  a  physician, 
competent  to  serve  as  jurors]  to  be  and  appear  before  me  at 

in  said  county  on  the day  of , 

19.  .  .  .,  at o'clock,  A.  M.,  of  that  day,  then  and  there  to 

be  sworn  as  jurors  to  try  the  issue  of  insanity  pending  between 

and then  and  there  to    be 

submitted.     Herein  fail  not  under  the  penalty  of  the  law. 

Given  under  my  hand  and  official  seal  this day 

of '.  .,  19 

Ordinary. 


OATH  OF  THE  JURY.     §3098. 


You  shall  well  and  truly  try  the  issue  of  insanity  pending 
between .  .  .  .  and .  ,  .  .  now  to  be  sub- 


564  INSANITY  AND  LUNATICS 

mitted  to  you  as  jurors,  and  a  true  verdict  give,  without  favor 
or  affection  to  either  party.     So  help  you  God. 


VERDICT  OF  THE  JURY.    §3098. 


We,  the  jury,  find  the  issue  in  favor  of  the  plaintiff. 
This day  of ,  19 


Foreman. 


JUDGMENT  OF  THE  COURT. 


Whereupon  it  is  considered,  ordered  and  adjudged  by  the 

court  that is  sane  in  mind  and  capable  of 

managing  his  affairs,  it  is  further  ordered  that  the  letters  of 

guardianship  formerly  granted  to as  guardian 

of  said be,  and  the  same  are,  hereby  canceled 

and  revoked. 

It  is  further  ordered  that  the  said  guardian  forthwith  deliver 

over  to  the  said all  of  the  property,  money  and 

effects  in  his  hands,  belonging  to  the  said 

This day  of ,19 

Ordinary. 


AFFIDAVIT  FOR  COMMITMENT  OF  INSANE  PERSON.    §3101. 


Georgia, County. 

Personally  before  me,  the  ordinary  of  said  county,  came 

,  who  on  oath  says  that of 

said  county,  is  insane,  and  that  he  has  no  guardian  [or,  that 
his  guardian,  on  notice,  refuses  and  fails  to  confine  his  said 
ward]. 

Deponent  further  says  that ,  the  insane 

person  aforesaid,  for  the  public  safety  [or  other  good  and  suffi- 
cient reason],  should  no  longer  be  left  at  large.  Deponent 
makes  this  affidavit,  that  a  warrant,  as  in  criminal  cases,  may 
issue  for  the  arrest  of  said  insane  person,  and  that  he  may  be 


INSANITY  AND  LUNATICS  565 

brought  before  the  ordinary  of  said  county,  according  to  the 
statute  in  such  cases  made  and  provided. 

Sworn  to  and  subscribed  before  me,  this 

day  of .  .,  19 

,  Ordinary. 


WARRANT. 

Georgia, County. 

To  any  Sheriff,  Deputy  Sheriff,  Coroner,  Constable,  or  Marshal 
of  said  State,  Greeting : 

having  this  day  made  oath  before  me 

that of  said  county  is  insane  and  has  no 

guardian  [or  that  his  said  guardian,  on  notice,  refuses  and  fails 
to  confine  his  said  ward],  and  that  for  public  safety  [or  other 

good  and  sufficient  reason]  the  said ,  the  insane 

person  as  aforesaid,  should  no  longer  be  left  at  large. 

These   are,   therefore,   to  command  you  to  arrest  the  said 

and  bring  him  before  me  at  the  court  house 

in  said  county  by o'clock,  A.  M.,  on  the day 

of ,  19.  . .  .,  to  be  dealt  with  as  the  law  directs. 

This day  of ,  19 

,  Ordinary. 


[NOTE. — When  the  ordinary  is  unable  to  act  for  any  cause,  the  judge 
of  the  Superior  Court  may  administer  the  oath  and  issue  the  warrant, 
and  conduct  the  investigation  of  the  facts,  and  may  commit  the  insane 
person  to  the  lunatic  asylum  and  if  necessary  cause  him  to  be  com- 
mitted temporarily  to  jail  until  he  can  be  removed  to  the  asylum. 
§3101.] 


CERTIFICATE  OF  THE  CLERK. 


Georgia, County. 

I, ,  clerk  of  the  court  of  ordinary  of  said 

county,  do  hereby  certify  that  the  foregoing pages 

is  a  true  and  perfect  exemplification  of  the  proceedings  on  record 
in  the  office  in  the  court  of  ordinary  of  said  county,  in  the  case 

of vs ,  a  pauper  lunatic  of 

said  county,  shown  on  the  trial  of  the  issue  of  lunacy. 


566  INSANITY  AND  LUNATICS 

A  true  extract  from  the  minutes  of  the  said  court,  this 
day  of ,19 


[Official  Seal.]  Clerk. 


COMMITMENT  TO  JAIL  PENDING  REMOVAL  TO  ASYLUM.    §3101. 


Georgia, County. 

To  the  Sheriff  of  said  County: 

,  having  been  adjudged  a  pauper  lunatic, 

you  are  hereby  commanded  to  convey  said to 

the  Georgia  State  Sanitarium  at  Milledgeville,  Georgia,  and 
meantime  that  you  commit  him  to  the  common  jail  of  said 
county,  to  be  there  safely  kept,  until  his  removal  to  the  lunatic 
asylum  as  aforesaid.  This day  of ,  19.  ... 

Ordinary. 


JUDGMENT.    §3101. 


Georgia, County. 

In  re.   application  for  commitment  of to  the 

Georgia  State  Sanitarium. 
On  an  investigation  of  the  facts  of  this  case,  it  is  considered 

and  adjudged  that ;  of  said  county,  is  a  pauper 

lunatic,  and  that  he  be  committed  to  the  Georgia  State  Sanita- 
rium at  Milledgeville,  Georgia,  and  it  appearing  to  be  necessary, 

the  said not  being  a  fit  person  to  be  left  at 

large,  it  is  further  ordered  that  he  be  temporarily  committed 
to  the  common  jail  of  said  county  until  he  can  be  removed  to 
said  asylum.  This day  of ,  19.  ... 


Ordinary. 


COMMITMENT  TO  GEORGIA  STATE  SANITARIUM.     §3101. 


Georgia, County. 

To  the  Keeper  of  the  Georgia  State  Sanitarium  at  Milledgeville, 
Georgia : 

having  on  the day  of 

19.  .  .  .,  been  adjudged  to  be  a  lunatic  by  the  ordinary  of  said 


INTEBEST  AND  USURY  567 

county  and  ordered  to  be  committed  to  the  lunatic  asylum,  you 

are,  therefore,  authorized  and  directed  to  receive  said 

into  said  asylum,  and  him  there  safely  keep  until  dis- 
charged by  law. 

I  certify  that  the  said is  a  pauper,  and, 

further  order  that  the  expenses  of  such  confinement  and  of  these 
proceedings  shall  be  paid  out  of  the  county  funds  of  said  county 

[or,  it  further  appearing  that  the  said has  an 

estate,  it  is  ordered  that  the  expenses  of  such  confinement,  and 
the  cost  of  these  proceedings  be  paid  out  of  said  estate]. 

This day  of ,  19 

Ordinary. 


INTEREST  AND  USURY.     §§3426-3445,  56T4. 


PLEA  OF  USUKY.    §§3428,  3438,  5674. 


(The  following  form  applies  to  law  as  it  stood  before  passage 
of  Acts '191 6,  p.  48.) 
(State  the  case.) 
And  now  comes  the  defendant  and  for  [further]  plea  says: 

1.  That  on  the.  . .  .day  of ,  19.  .  .  .,  defendant 

borrowed  of  plaintiff  the  sum  of dollars,  to  be  paid 

months  after  that  date. 

2.  That  on  the day  of ,  19 .  . .  . ,  as 

evidence  of  said  indebtedness,  defendant  executed  and  delivered 

to  the  plaintiff  the  note  here  sued  on,  for  the  sum  of 

dollars,  being dollars,  in  excess  of  the  principal 

sum  borrowed  as  aforesaid,  said  note  being  made  payable 

months  after  the  date  thereof. 

.  3.  That  the  defendant  agreed  with  plaintiff  to  pay  him 

per  cent,  per  annum  interest,  being per  cent,  in 

excess  of  the  legal  rate,  and  the  sum  of dollars, 

in  excess  of  the  amount  borrowed,  was  added  in  the  face  of  said 
note  to  cover  interest  at  the  usurious  rate  aforesaid. 

4.  That dollars  of  the  amount  specified  in  said 

note  is  usurious,  and  plaintiff's  demand  should  be  reduced  by 
said  sum. 

And  of  this  defendant  puts  himself  upon  the  country. 

Defendant's  Attorney. 


568  INTEKEST  AND  USURY 

PLEA  OF  USUKY  UNDER  ACTS  1916,  p.  48. 


For  further  plea  and  answer,  the  defendant  shows  the  follow- 
ing facts. 

1st.  Said  note  sued  on  is  for  the  sum  of  five  hundred 
($500.00)  dollars,  with  interest  after  maturity  at  the  rate  of 
eight  (8%)  per  cent,  per  annum;  that  plaintiff  loaned  defendant 
the  sum  of  four  hundred  fifty  ($450.00)  dollars  for  six  months, 
and  that  in  said  note  is  embraced  ten  (10%)  per  cent,  interest, 
making  the  sum  of  fifty  ($50.00)  dollars  for  interest  for  six 
months  upon  four  hundred  fifty  ($450.00)  dollars  loaned,  which 
said  fifty  ($50.00)  dollars  is  usurious,  and  defendant  shows 
these  facts  to  the  court,,  and  says  that  under  the  law  the  plaintiff 
i?  entitled  to  a  judgment  for  the  sum  £>f  only  four  hundred  fifty 
($450.00)  dollars,  the  amount  loaned,  he  having  forfeited  all 
interest  and  usury  under  the  law. 

-OR— 

And  for  further  plea  and  answer,  the  defendant  shows  the 
following  facts: 

1st.  The  note  sued  on  is  for  five  hundred  ($500.00)  .dollars, 
with  interest  from  date  at  the  rate  of  ten  (10%)  per  cent,  per 
annum,  and  this  defendant  shows -that  said  rate  of  interest  is 
usurious,  and  that  for  this  reason  the  plaintiff  forfeits  all  inter- 
est, and  the  plaintiff  is  entitled  to  a  judgment  for  only  the 
amount  loaned,  to  wit,  the  sum  of  five  hundred  ($500.00) 
dollars. 

(NOTE:     These  pleas  should  be  sworn  to.) 

-OR- 

The  defendant  might  reach  the  last  note  by  a  special  demurrer 
in  this  form : 


!ln  the  Superior  Court  of 
County,   / Term,  19... 


Now  comes  the  defendant  in  the  above  named  and  stated 
case  at  this  the  appearance  term,  and,  before  answering  therein, 
files  this  his  demurrer  to  the  petition  therein,  and  for  grounds 
of  demurrer,  says: 

1st.  Plaintiff  sues  defendant  upon  a  note  for  five  hundred 
($500.00)  dollars,  with  interest  from  date  at  ten  per  cent. 
(10%)  per  annum,  and  this  defendant  shows  that  said  rate  of 
interest  is  usurious,  and  that  under  the  law  plaintiff  is  not 
entitled  to  any  interest,  and  he  prays  the  court  to  strike  from 


INTERROGATORIES  AND  DEPOSITIONS  569 

said  petition  all  claim  of  interest  on  the  part  of  the  plaintiff, 
as  under  the  law  the  plaintiff  has  forfeited  the  same. 

Attorney  for  Defendant. 


Assignment.    Defense  of  usury  is  in  assignor  or  his  privies,  not  in  his 

debtor.     126/192  (55  S.  E.  22). 
Bankruptcy.      Debtor's    trustee    in    bankruptcy    is    representative    of 

debtor,  and  defense  of  usury  is  as  available  to  trustee  as  to  debtor 

himself.     17/246  (1)    (87  S.  B.  694). 
Blanks  in  plea  of  usury.    91/508  (2)    (18  S.  E.  131);  124/543  (52  3.  E. 

927). 
Deed.    Plea  of  usury  to  avoid  deed  does  not  require  same  particularity 

as  such  plea  to  action  for  money.     104/318-(2)    (31  S.  E.  215). 
Demurrer.     Defect  in  substance  in   plea  of  usury  may  be  taken   ad- 
vantage of  by  general  demurrer  or  oral  motion  to  strike.     124/541 

(52  S.  E.  927). 

Personal  plea,  plea  of  usury  is.    17  App.  246  (1)   (87  S.  E.  694). 
Statute.    Plea  of  usury  which  fails  to  comply  with  Code,  §5674,  is  fatally 

defective.     142/609    (83   S.   E.   272);    124/541    (52    S.   E.    927).     A 

similar  degree  of  specification  is  required  where  it  is  sought  by 

independent  action  to  recover  usury  alleged  to  have  been  paid  by 

debtor  of  creditor.     142/609   (83  S.  E.  272). 
Striking  plea.     Plea  of  usury  may  be  stricken  on  oral  motion,  where 

it  fails   to  set   forth   facts   required   by   statute.     138/62    (1)    (74 

S.  E.  790). 


INTERROGATORIES  AND  DEPOSITIONS. 

§§5886-5923,  6289-6294. 


INTERROGATORIES.     §5889. 


(State  the  case.) 

Original  interrogatories  to  be  propounded  to 

a  material  witness  for  the and  who  resides  in  the 

county  of State  of 

First  direct  interrogatory.  Do  you  know  the  parties  to  this 
case? 

Second.     Where  do  you  reside? 

Third.  [Propound  as  many  questions  as  desired,  making 
them  "sufficiently  explicit  to  inform  the  opposite  party  of  the 
nature  of  the  testimony  sought  and  expected,  and  yet  not  liable 
to  the  objection  of  being  leading  questions."] 

Attorney  for 


570  INTERROGATORIES  AND  DEPOSITIONS 

ENTRY  OF  CLERK. 


Filed  in  the  office  of  the  clerk  of  the court  of 

, county,  the day  of ,  19 .... 


Clerk. 


NOTICE  TO  BE  SERVED  ON  ADVERSARY  PARTY. 

(State  the  case.) 
To .: 

You  are  hereby  notified  that  I  have  this  day  filed  in  the  office 

of  the  clerk  of  the court  of county,  original 

interrogatories  for as  a  witness  in  the  above  stated 

case,  and  that  at  the  expiration  of  ten  days  I  shall  apply  for  a 
commission  in  terms  of  the  law  for  an  examination  of  said 
witness.  A  copy  of  said  interrogatories  is  hereto  attached. 

This day  of ,  19 


Attorney  for, 


ACKNOWLEDGMENT  OF  FILING  AND  WAIVER.     §5903. 


Notice  of  the  filing  of  the  within  interrogatories  acknowl- 
edged ;  copy  and  all  further  or  other  notice  of  the  time  of  filing 
waived.  Let  commission  issue  instanter. 

This day  of ,19 


Attorney  for, 


.COMMISSION  FOR  INTERROGATORIES.     §6289. 


Georgia, County. 

By  his  Honor.  .  .  .  f ,  one  of  the  judges  of  the 

court  for  the  county  and  State  aforesaid. 

To ,    and ,  Greeting : 

Whereas,  There  is  a  certain  matter  of  controversy  now  de- 
pending in  the court for  said  county, 

between .  .  .  .  and .  . 


INTERROGATORIES  AND  DEPOSITIONS  571 

t 

And  whereas is  a  material  witness  in  said 

suit  and  can  not  attend  our  said  court  in  person  without  mani- 
fest inconvenience: 

Now  know  ye,  That  we,  reposing  special  trust  and  confidence 
in  your  prudence  and  fidelity,  have  appointed  you,  and  you  or 
any  two  or  more  of  you  are  hereby  authorized  and  required  to 

cause  said personally  to  come  before  you,  and 

after  being  duly  sworn,  to  examine concerning  the 

said  suit,  agreeably  to  the  interrogatories  hereunto  annexed ; 
and  the  answers  to  the  same  being  plainly  and  distinctly  writ- 
ten, you  are  to  send  the  same,  closed  up  under  your  hands  and 

seals  to  our  said  court  to  be  held  on  the day  of 

next,  together  with  this  writ. 

Witness,  the  Honorable ,  one  of  the  judges 

of  said  court,  this day  of ,  19.  ... 

"Clerk." 


INSTRUCTIONS  TO  GUIDE  IN  TAKING  TESTIMONY. 


First.  Fill  the  blank  in  the  commission  with  the  names  of 
the  persons  officiating  as  commissioners.  (Two  may  act.  Less 
than  two  will  not  suffice.)  « 

Second.     Take  a  separate  sheet  of  paper,  state  the  case  pre- 
cisely as  it  is  at  the  head  of  the  interrogatories.     Then  write 
the  following  formula: 
State  of ,  County  of 

By  virtue  of  a  commission  from  the  Honorable  the 

court  of county,  to  us  directed,  we  have  caused 

[insert  the  name  of  witness  or  witnesses]  the  witness  in  said 
commission  named  to  come  before  us,  and  being  duly  sworn, 
true  answers  to  make  to  the  interrogatories  to  said  commission 
annexed,  deposes  and  answers  as  follows: 

To  the  first  interrogatory,  he  answers  [and  so  with  the  rest 
of  the  answers.  When  all  are  answered,  both  direct  and  cross- 
interrogatories,  let  the  witness  subscribe  them.  Then  the  com- 
missioners will  observe  the  following  form  at  the  end  of  the 
answers:] 

Answered,  sworn  to  and  subscribed  before  us,  this 

day  of ,  19 

Commissioner.  [L.  S.] 

Commissioner.  [L.  S.] 


572  INTERROGATORIES  AND  DEPOSITIONS 

Then  annex  the  answers  to  the  interrogatories,  seal  all  up  in 
one  packet,  put  as  many  seals  on  the  envelopes  as  there  are 
commissioners,  let  each  commissioner  write  his  name  across  the 
seal,  adding  the  word  "Commissioner."  Direct  the  package: 

"To  the  clerk  of county  of county, 

Georgia."  If  the  packet  is  to  be  sent  by  mail,  let  the  post- 
master certify  as  follows:  "Received  this  package  from 

,  one  of  the  commissioners ,  Postmaster 

at " 

State  the  case  on  the  outside  of  the  envelope,  just  as  it  is  in 
the  caption  of  the  interrogatories. 


(NOTE. — 1.    No  party,  or  his  counsel,  or  agent,  or  other  person  in  his 
behalf,  can  be  present  at  the  execution  of  the  commission. 

2.  No  person  who  would  be  incompetent  as  a  juror  on  account  of 
relationship,  and  no  attorney  of  either  of  the  parties,  clerk,  or  agent 
paid  to  discharge  this  duty  can  be  a  competent  commissioner. 

3.  Witnesses  may  write  out  their  answers  only  in  presence  of  the 
commissioners,  and  by  their  consent,  AND  IN  NO  OTHER  WAY. 

4.  All  written  memoranda,  that  a  witness  answers  from,  must  be 
sent  with  the  commission,  and  the  fact  certified  by  the  commissioners.) 


NOMINATION  OF  COMMISSIONERS. 


and are  hereby  nominated 

as  suitable  and  competent  persons  to  execute  the  within  inter- 
rogatories.    This day  of ,  19.  . . . 


Attorney  for, 


OATH  OF  WITNESS. 


You  do  solemnly  swear  that  you  will  true  answers  make  to 
the   interrogatories  put  to   you   in   the   case   pending   in   the 

Honorable court  of county,  in  which 

is  plaintiff  and is  defendant. 

So  help  you  God. 


[NOTE. — The   foregoing   oath   may   be  administered   by   one   of   the 
commissioners.] 


RETURN  OF  COMMISSIONERS.     §5903. 


State  of . .  . ,  County  of 

By  virtue  of  the  commission  duly  issued,  and  to  us  directed 


INTERROGATORIES  AND  DEPOSITIONS  573 

[or,  by  virtue  of  an  agreement  between  the  parties,  or  counsel 

hereto  attached]  in  the  case  of vs 

pending  in  the court  of .county  [or, 

district,  as  the  case  may  be,]  the  undersigned,  acting  as  com- 
missioners, have  caused a  witness  in  the  said 

case,  to  come  before  us,  who  being  duly  sworn  true  answers  to 
make  to  annexed  interrogatories,  deposes  and  answers  as  follows : 

To  the  first  interrogatory  he  answers. 

To  the  second  interrogatory  he  answers. 

Etc.,  etc. 

Witness. 

Answered,  sworn  to  and  subscribed  before  us  this day 

of ,  19 

Commissioner.   [SEAL.] 

'. .  .  . Commissioner.   [SEAL.] 

Commissioner.   [SEAL.] 


CERTIFICATE  OF  TRANSMISSION.     §5898. 


NOTE. — A  postmaster  or  express  agent  receiving  a  package  from  one  of 
the  commissioners  should  make  the  following  entry  thereon: 

I  certify  that  I  received  this  package  from ,  one  of 

the  commissioners,  to  be  forwarded  by  due  course  of  mail  [or 
express,  as  the  case  may  be]. 

This day  of ,  19.... 


Postmaster,  or  express  agent  at 

I  certify  that  this  package  was  received  by  due  course  of  mail 
[or  express]  this day  of ,  19.  ... 


Postmaster  at. 


RECEIPT  OF  CLERK  OR  J.  P.    §5900. 


NOTE. — The  following  entry   should   be  made  of  the   package  when 
received : 

Received  the  within  package  in  open  court  of or 

from ,  postmaster  at [or,  from 


574  INTERROGATORIES  AND  DEPOSITIONS 

.  .  . ,  express  agent  at ]  upon  the 

usual  oath,  with  leave  to  open  this day  of , 

19.. 


Clerk. 


NOTICE  OF  TAKING  DEPOSITIONS. 


vs. 


No 

In  .  .  .  Court 


Term,    19 


To  the or ,  Attorney : 

You  are  hereby  notified  that,  on 

the day  of ,  19 .  .  .  . ,  beginning  at .  . 

o'clock, M.,  at building,  in 

Georgia,  we  will  proceed  to  take  the  depositions  of 


before ,  commissioner  of 

Superior  Court,  on  behalf  of  the in  the 

above  entitled  cause,  and  will  continue  from  day  to  day  until 
said  examination  is  completed. 

You  are  notified  to  be  present  and  cross-examine  said  witness. 
This day  of ,19 


Attorney  for. 


ACKNOWLEDGMENT  or  SERVICE. 


Due  and  legal  service  of  the  above  notice  hereby  acknowl- 
edged, copy  received  and  further  notice  waived.     This 

day  of ,19 


Attorney  for. 


INTERROGATORIES  AND  DEPOSITIONS  575 

SUBPOENA. 


Georgia, County. 

In.  .  .  .Court. 


vs. 


To ,  Greeting : 

You  are  hereby  commanded,  That,  laying  all  other  business 

aside,  you  personally  be  and  appear  at  the building, 

at ,  Georgia,  before , 

commissioner,  to  take  your  depositions  at o'clock,  .  .  .M., 

on  the day  of ,  19.  .  .  .,  then  and  there  to 

be  sworn  as  a  witness  for  the in  the  above  stated 

case.  Herein  fail  not  under  penalty  of  the  law. 

Witness  my  hand  and  seal,  this day  of , 

19 

(L.  S.) 

Commissioner. 


RETURN  OF  COURT  COMMISSIONER.     §§5910-5917. 


(State  the  case.) 

The  deposition  of ,  a  witness  for  the 

in  the  above  stated  case,  taken  upon  notice  given  on  the 

day  of ,  19 .  .  .  . ,  at in  the  presence 

of 

The  said  witness,  being  first  duly  sworn,  deposes  as  follows: 

[The  commissioner  will  state  what  questions,  with  answer 
made  by  the  witness  immediately  afterwards,  and  conclude  as 
follows:] 

The  foregoing  depositions  were  taken  before  me,  as  stated  in 
the  caption,  and  the  answers  reduced  to  writing  by  me,  or  by 
the  witness  in  my  presence  and  I  certify  that  I  am  not  interested 
in  the  case  nor  kin  or  counsel  to  either  party. 

This day  of ,  19 


Official  Commissioner. 


576  INTERROGATORIES  AND  DEPOSITIONS 

ARREST  OF-  WITNESS  REFUSING  TO  APPEAK — AFFIDAVIT  OF 

PARTY. 


Georgia, County. 

In  person  appeared  before  the  undersigned , 

who,  after  being  sworn,  says  that  he  has  commenced  his  action 

of in  the  Superior  Court  of  the  county  of 

in  said  State,  against ,  which  action  is  now 

pending  in  said  court.  That  a  commission  with  certain  inter- 
rogatories thereunto  annexed,  issued  from  said  court,  in  con- 
formity to  law,  to  take  the  testimony  of ,  of 

the  county  of ,  a  material  witness  in  said  case,  on 

the  part  of  deponent.     That  said  commissioners  have  required 

the  personal  attendance  of  said in  order  that  his 

testimony  might  be  taken ;  but  said without 

any  legal  excuse,  fails  [refuses  or  neglects,  as  the  case  may  be,] 
to  appear  before  said  commissioners  for  the  purpose  aforesaid. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

.,J.  P. 


ORDER  OF  THE  JUDGE  THEREUPON. 


Georgia, County. 

To  All  and  Singular,  the  Sheriffs  and  Constables  of  said 

Whereas,  I  have  been  informed  by  the  affidavit  of 

that  he  has  commenced  his  action  of in  the 

Superior  Court  of  the  county  of against 

,  which  action  is  now  pending  in  said  court. 

That  a  commission  with  certain  interrogatories  thereunto  an- 
nexed, issued  from  the  Superior  Court  of  the  county  of 

in  conformity  to  law,  to  take  the  testimony  of , 

of  the  county  of ,  a  material  witness  in  said  case, 

for  the  deponent.     That  said  commission  has  been  delivered  to 

and as  commissioners.     That 

said  commissioners  have  required  the  personal  attendance  of 

said in  order  that  his  testimony  might  be 

taken,  but  that  said y  without  legal  excuse, 

fails  to  appear  before  the  said  commissioners  for  the  purpose 


INTRUDERS 

aforesaid :  volt  and  each  of  yon  are  therefore  hereby  commanded 

.to  arrest  the  body  of  the  said and  bring  him 

before  me  at in  said  county,  by o'clock 

of  the day  of that  he  may  be  dealt  with  as 

the  law  directs.     Herein  fail  not. 

» 

Given  under  my  hand  and  official  signature. 
This day  of ,19 

j.s.c..  .'.a 


INTRUDERS.     §§5380-5384. 


AFFIDAVIT  TO  REMOVE  INTRUDER.     §5380. 


Georgia, County. 

Before  me, ,  an  officer  of  said  State 

authorized   by   law   to   administer   oaths,   personally   appeared 

,  who  on  oath  says  that  he  does  in  good  faith 

claim  the  right  of  possession  to  a  lot  or  parcel  of  land  and  the 

tenements  thereon,  to  wit,  a  house  and  lot  in in 

said  county,  designated  as  lot  No in  the  plan  of 

said and  known  as  the house  and 

lot,  and  that  said  parcel  of  land  and  the  tenements  thereon  is 

in  the  possession  of  another  person,  to  wit,  one , 

who  does  not  in  good  faith  claim  a  right  to  such  possession  and 
yet  refuses  to  abandon  the  same. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  -19 


[Official  designation.] 


COUNTER  AFFIDAVIT.    §5380. 


Georgia, County. 

Before  me ,  sheriff  of  said  county,  person- 
ally appeared ,  who,  upon  oath,  says  that  he 

does  in  good  faith  claim  a  legal  right  to  the  possession  of  a 
certain  lot  or  parcel  of  land  and  the  tenements  thereon  in 
in  said  county,  and  designated  as  lot  No 


578  INTRUDERS 

in  the  plan  of  said  town,  and  known  as  the house 

and  lot,  being  the  property  described  in  the  affidavit  of 

this  day  exhibited  to  deponent  by  said  sheriff, 

Sworn  to  and  subscribed  before  me,  this 
k day  of./. ,  19 


Sheriff  of County. 


[NOTE. — The  sheriff,  under  §5381,  may  administer  the  above  oath.] 


JOINDER  OF  ISSUE.     §5382. 


Comes  now  the  affiant  and  says  that  the  facts  set  up  in  the 
counter  affidavit  are  not  true,  and  joins  issue  thereon,  and  says 
that  affiant  is  entitled  to  the  property  as  set  out  in  affiant's 
affidavit. 

Attorney  for  Affiant. 

Comes  now  the  respondent  and  joins  issue,  and  says  that  the 
facts  set  out  in  his  counter  affidavit  are  true.  And  this  he 
prays  may  be  inquired  of  by  the  court. 

Attorney  for  Kespondent. 


VERDICT.     §5383. 


We,  the  jury,  find  the  issue  in  favor  of ,  with 

costs  of  suit.     This day  of ,  19.  ... 

Foreman. 


JUDGMENT.    §5383. 


Whereupon,  it  is  considered,  ordered  and  adjudged  by  the 

court  that  the  said is  entitled  to  possession  of 

a  lot  or  parcel  of  land  and  the  tenements  thereon,  to  wit,  of  a 

house  and  lot  in  the  town  of county,  Georgia, 

designated  in  the  plan  of  said  town  as  lot  No .  . ,  and 

known  as  the house  and  lot;  and  that  the  clerk 

of  this  court  issue  a  writ  of  habere  facias  possessionem  in  favor 


INTRUDERS  5Y9 

of  said against for  said  house 

and  lot. 

It  is  further  ordered  that  the  said recover 

of  the  said . .  the  sum  of dollars 

and  costs  of  suit.     This.  .-.  .  .  .day  of ,  19.  ... 

Attorney  for ,  Affiant. 


WRIT  OF  HABERE  FACIAS  POSSESSIONEM.     §5384. 


Georgia, County. 

To  all  and  singular  the  Sheriffs  of  this  State  and  their  lawful 
Deputies : 

Whereas, ,  at  the term,  19 .  .  .  . , 

of  the  Superior  Court  of  said  county,  recovered  by  the  judgment 

of  the  said  court,  of  one ,  a  certain  house  and 

lot  in  the  town  of ,  in  said  county,  designated 

in  the  plan  of  said  town  as  lot  No ,  and  known 

as  the house  and  lot,  which  said  house  and  lot 

has  heretofore  been,  and  still  is,  unjustly  withheld  from  the 

said by  said And  forasmuch 

as  it  is  ordered  and  adjudged  by  the  court  that  the  said 

have  execution  upon  his  said  judgment  against 

the  said according  to  the  force  and  form  and 

effect  of  his  said  recovery. 

Now,  therefore,  you  are  hereby  commanded  to  proceed  forth- 
with to  put  the  said in  full  and  quiet  possession 

of  said  house  and  lot  with  the  appurtenances  thereto  belonging, 

and  to  make  return  hereof  to  the term,  19 .  .  .  . ,  of  said 

Superior  Court,  in  what  manner  you  have  executed  this  writ. 

You  are  also  commanded  that  of  the  goods  and  chattels,  lands 

and  tenements  of  the  said .you  make  or  cause 

to  be  made  the  sum  of dollars,  which  in  said  court 

was  adjudged  to  the  said as  costs  in  this  behalf, 

whereof  said stands  convict  as  appears  to  us  of 

record.     And  have  you  said  sums  of  money  before  this  court  on 

the  day  aforesaid  to  render  to  the  said for  his 

costs  aforesaid.     And  have  you  then  and  there  this  writ. 

Witness  the  honorable ,  judge  of  the  said 

court,  this day  of ,  1 9 .... 

Clerk. 


580  JUDGMENTS  AND  DECREES 

JUDGMENT  WHERE  ISSUE  Is  FOUND  AGAINST  THE  PLAINTIFF. 

§5383. 


Whereupon,  it  is  considered,  ordered  and  adjudged  by  the 

court  that  the  defendant, ,  do  have  and  recover 

of  the  plaintiff, ,  the  sum  of dollars 

and cents,  costs  in  this  behalf  laid  out  and  expended. 

This...... day  of ,19 

Defendant's  Attorney. 


Affidavit  may  be  made  before  any  officer  authorized  to  administer  an 
oath.  123/456  (51  S.  E.  381).  County  judge  is  authorized  to 
administer  oath  and  to  hear  and  determine  issue  made  by  counter- 
affidavit.  Id.  Affidavit  should  sufficiently  describe  land  to  enable 
sheriff  to  identify 'premises.  GO/523. 

Amendment  of  affidavit  and  counter-affidavit  not  amendable  under  Act 
of  1854.  60/524. 

Counter-affidavit  should  state  that  occupant  bona  fide  claims  legal 
right  to  possession.  38/29  (2).  Counter-affidavit  that  defendant 
"does  in  good  faith  claim  a  legal  title  to  the  possession"  was 
sufficient.  73/261. 

Judgment  should  declare  that  plaintiff  is  entitled  to  possession  and 
that  writ  of  possession  do  issue  including  fi.  fa.  for  costs.  123/457 
(51  S.  E.  381). 


JUDGMENTS  AND  DECEEES.     §§5934-5979. 


JUDGMENT  ON  ORDINARY  MONEY  VERDICT.     §5934. 


Whereupon,  it  is  considered,  ordered  and  adjudged  by  the 

court,  that  the  plaintiff, ,  do  have  and  recover 

of  the  defendant, , dollars, 

principal,  and dollars,  interest,  (together  with 

future  interest  upon  said,  principal  at  the  rate  of  eight  per  cent, 
per  annum),  and dollars,  costs  of  court. 

This day  of ,  19 


Attorney  for. 


JUDGMENTS  AGAINST  PRINCIPAL  AND  SURETY  OR  INDORSER, 


Whereupon,  it  is  considered,  ordered  and  adjudged  by  the 
court,  that  the  plaintiff, ,  do  have  and  recover 


JUDGMENTS  AND  DECREES  581 


of  the  defendant, ,  as  principal,  and , 

as  security  (or  indorser,  as  the  case  may  be),  the  sum  of 

dollars  and cents,  as  principal,   dollars 

and cents,  as  interest  to  date  of  judgment,  and  the 

sum  of dollars  and cents  for  costs  of 

suit,  with  interest  on  the  principal  debt  at per  cent,  per 

annum  from  date  of  judgment.     This day  of , 

19 

Plaintiff's  Attorney. 


JUDGMENT  ON  UNCONDITIONAL,  CONTRACT  IN  WRITING.    §6.296. 


vs. 


There  being  no  issuable  defense  filed  on  oath  in  this  case, 
judgment  is  rendered  by  the  court  for  the  plaintiff  against  de- 
fendant for dollars  and cents  as  principal, 

dollars  and cents  as  interest,  and 

dollars  and cents  for  costs  of  suit,  with 

interest  on  the  principal  debt  at per  cent,  per  annum 

from  date  of  judgment. 

This day  of. . ,  19 

Judge  of  Superior  Court. 


JUDGMENT  FOR  PLAINTIFF  WHERE  DAMAGES  FOUND  IN  PER- 
SONAL ACTION  is  LESS  THAN  TEN  DOLLARS.     §5984. 


Whereupon  it  is  considered,  ordered  and  adjudged  by  the 

court,  that  the  plaintiff do  have  and  recover 

of  the  defendant the  sum  of . 

dollars,  and  the  further  sum  of  [same  amount]  dollars  for  costs. 

This day  of 19 

Plaintiff's  Attorney. 


582  JUDGMENTS  AND  DECREES 

JUDGMENT  AGAINST  PLAINTIFF  FOR  BALANCE  OF  COST. 


(State  the  case.) 

Judgment  having  been  entered  up  in  favor  of  plaintiff 

against  the  defendant for  the  sum 

of dollars,  the  amount  of  costs  to  which  said  plaintiff  is 

entitled,  it  is  considered,  ordered  and  adjudged  by  the  court 

that  defendant do  have  and  recover  of  the 

plaintiff the  sum  of dollars  and 

cents,  balance  of  costs  in  this  case  for  the  use  of  the 

officers  of  the  court. 

This  the day  of ,  19 

Plaintiff's  Attorney. 


ORDER  TO  ENTER  JUDGMENT  AGAINST  ATTORNEYS  OF 
RESIDENT  PLAINTIFF.     §5993. 


(State  the  case.) 

It  appearing  to  the  court  that instituted  an 

action  of.  . returnable  to  the term,  19.  .  .  ., 

of  said  court  in  favor  of against ; 

and  it  further  appearing  that  said • is  a  non- 
resident of  this  State,  and  has  been  cast  in  his  said  suit :  It  is 
ordered  by  the  court  that  defendant's  counsel  have  leave  to 

enter  up  judgment  against. ,  the  plaintiff's 

attorney,  for  the  costs  of  the  officers  of  court  in  said  case. 

This'. day  of ,  19 


JUDGMENT  THEREON.     §5994. 


Whereupon  it  is  considered,  ordered  and  adjudged  by  the 

court,  that  the  defendant,  ,  recover  of 

,  the  plaintiff's  attorney,  the  sum  of 

dollars  and cents,  for  the  costs  of  the  officers  of  court, 

in  the  case  of against 

This day  of ,  19.  ... 

Defendant's  Attorney. 


JURISDICTION  583 

Amendment.  Court  may,  at  term  at  which  rendered,  amend  judgments, 
for  cause  appearing.  16  App.  596  (85  S.  E.  940).  By  proper  order 
a  judgment  may  be  amended  so  as  to  conform  to  pleadings,  and 
this  may  be  done  even  after  issuance  of  execution  and  without 
notice  to  defendant.  16  App.  466  (1)  (85  S.  E.  679). 

Form  of  judgment  in  city  court  suggested.  14  App.  329,  332  (80  S.  E. 
913). 

Oral  announcement  of  judgment  is  not  a  judgment,  when.  126/353  (55 
S.  E.  31). 

Setting  aside.  Motion,  resting  upon  something  presented  as  an  excuse 
by  the  movant,  should  set  out  a  valid  and  legal  defense,  and  the 
motion  itself  should  disclose  the  nature  and  character  of  the  de- 
fense, which  should  be  legally  a  meritorious  one.  15  App.  822,  829 
(84  S.  E.  312);  18  App.  368  (2)  (89  S.  EL  493).  Motion  to  set 
aside  judgment  is  amendable  by  adding  other  grounds.  126/499 
(7)  (55  S.  E.  251). 


JURISDICTION.     §§5663-6667. 


PLEA  TO  THE  JURISDICTION.     §§5665-5667. 


Georgia, : County. 


rln  the  Superior  Court  of 
County, Term,  19 


And  now  comes  the  defendant  in  the  above  stated  case,  at 
this  the  appearance  term,  in  his  own  proper  person,  and  says 
that  this  court  ought  not  to  have  or  take  further  cognizance  of 
the  suit  above  stated,  because,  he  says,  that  at  the  time  of  the 

commencement  of  the  said  suit,  to  wit,  on  the day 

of ,  19 .  .  .  . ,  and  from  thence  hitherto,  the  defendant 

resided  in  the  county  of in  said  State,  and  is  now 

a  resident  of  said  county  of and  is  not  a  resident 

of  the  county  of and  that  the  Superior  Court 

of county  has  jurisdiction  of  this  case,  and  this 

court  has  not. 

And  of  this  he  puts  himself  upon  the  country. 


AFFIDAVIT  TO  PLEA.    §5667. 


Georgia, County. 

,  the  defendant  in  the  above  stated  case, 


584  JURY  AND  JURORS 

in  person,  appeared  before  the  undersigned,  and  makes  oath  and 
says  that  the  facts  stated  in  the  foregoing  plea  are  true. 

Sworn  to  and  subscribed  before  me,  this 

day  of , ,  19 

,J.P. 


PLEA  TO  THE  JURISDICTION  IN  JUSTICE'S  COURT. 


(State  the  case.) 

And  now  comes  the  defendant  at  the  appearance  term,  and 

on  oath  says  that  he ,  the  said  defendant,  does 

not  now,  nor  at  the  time  of  the  commencement  of  said  suit,  nor 
for  many  months  before  ?he  commencement  thereof,  reside 

in county,  Georgia,  but  that  he  resided  at 

......  .in county,  Georgia,  in  the district, 

G.  M.,  of  said  last  named  county,  and  that  the  justice's  courts 
of  said  district  and  county  have  jurisdiction  of  the  case,  and 

that  the  justice's  court  of  the district,  G.  M.,  of 

county,  has  no  jurisdiction. 


(NOTE:     This  plea  must  be  verified,  and  affidavit  may  be  same  as  in 
preceding  form.) 


Motion.  Question  as  to  jurisdiction  can  not  be  raised  by  motion,  but 
must  be  by  plea,  where  summons  does  not  show  cause  of  action 
split  so  as  to  bring  it  within  jurisdiction.  102/550  (28  S.  E.  225). 

Paragraphs  of  petition  need  not  be  specifically  answered,  where  de- 
fendant relies  upon  plea  to  jurisdiction  alone.  9  App.  38  (70  S.  E. 
257). 

Personal,  plea  is,  and  must  be  sworn  to  by  defendant  filing  it.  136/21 
(70  S.  E.  639). 

Plea  to  jurisdiction  must  be  sworn  to  by  defendant.  122/279  (2)  (50 
S.  E.  105).  It  must  appear  in  such  plea  that  there  is  another  court 
in  this  state,  which  has  jurisdiction  of  the  case.  Id.  Where  plea 
was  stricken,  and  Supreme  Court  held  that  court  erred,  defendant 
can  not  subsequently  urged  defenses  to  merits  of  case  without 
waiving  objection  to  such  jurisdiction.  137/300  (73  S.  E.  507). 
Denial  of  paragraph  in  petition  alleging  defendant's  residence  in 
county  where  suit  was  brought  was  not  equivalent  to  plea  to  the 
jurisdiction.  4  App.  360  (61  S.  E1.  552). 

"Want  of  jurisdiction,"  as  used  in  Code,  §5665,  refers  to  jurisdiction  of 
the  subject-matter  involved  in  the  suit,  and  not  to  the  person.  12 
App.  147  (76  S.  E.  1055);  132/630  (64  S.  E.  790);  18  App.  395  (2) 
(89  S.  E.  442). 


JURY  AND  JURORS. 

§§4831  (x)-4831  (cc)  ;  811-884,  996-1005  P.  C. 


JURY  AND  JURORS  585 

SET  FOR  SUMMONING  GRAND  JURORS.     §827  P.  C. 


..................  Court. 

Grand  and  Traverse  Jurors 
Drawn  for  ........  term,   19  ----  ,  by  his  Honor  ..........  , 

Judge  of  the  said  court,  on  ......  day  of  ........  ,  1  9  .... 


GRAND  JURORS. 


2 17 

3 18 

4; 19 

5 20 

6 21.* 

7 22 

8 23 

9 24 

10 25 

11 26 

12 27 

13 28 

14 29 

15 30 

TRAVERSE  JURORS FIRST  WEEK. 

1 19 

2 20 

3 21 

4 " 22 

5 23 

6 24 

7 25 

8 26 

9 27 

10 28 

11 29 

12 30 

13 31 

14 32 

15 33 

16 34 

17 35 

18..  36 


JURY  AND  JURORS 


1 

TRAVERSE  JURORS  SECOND  WEEK. 

19  

2 

20  

3 

21  

4  

22  

5  .... 

23  

6  

24  

7.'  

25  

8  

26  

9 

27  

10  

28  

11 

29  

12  .... 

30  

13  

31  

14  

32  

15 

33  

16  

34  

17  

35  

18  

36  

VENIRE  FACIAS. 


Georgia, County. 

To  the  Sheriff  of  said  County : 

You  are  hereby  commanded  to  summon  the  persons  whose 
names  appear  in  the  foregoing  panels,  to  be  and  appear  at  the 

court,  to  be  held  in  and  for  said  county  on  the 

Monday  in next,  at  10  o'clock,  A.  M.,  of  that  day, 

to  serve  as  grand  and  traverse  jurors  at  the term, 

19.  .  .  .,  of  said  court,  they  having  been  duly  drawn  according 
to  law,  and  have  you  then  and  there  this  precept  with  your 
return  thereon,  as  to  how  you  have  executed  the  same.  Herein 
fail  not. 

Witness  the  Honorable ,  judge  of  said  court, 

this day  of ,  19.  ... 

Clerk. 


OATH  or  WITNESS  BEFORE  THE  GRAND  JURY.     §838  P.  C. 


"The  evidence  you  shall  give  the  grand  jury  on  this  bill  of 
indictment  [or  presentment,  as  the  caSe  may  be — here  state  the 


JURY  AND  JURORS  587 

case]  shall  be  the  truth,  the  whole  truth,  and  nothing  but  the 
truth.     So  help  you  God." 


SELECTION  OF  TALES  GRAND  JURORS.     §867  P.  C. 


Georgia,  ............  County. 

In  the  Superior  Court  of  said  County. 
............  Term,  19  ____ 

It  appearing  to  the  court  that  in  the  investigation  by  the 
grand  jury  of  the  case  of  the  State  vs  ..................  that 

are  as  grand  jurors  disqualified,  by  reason  of  relationship  to 
the  defendant  ............  ,  whereby  the  grand  jury  is  reduced 

to  ............  qualified  jurors,  it  is  ordered  that  the  sheriff 

summon  ............  qualified  jurors  to  be  sworn  and  to  serve 

on  said  grand  jury  in  said  case. 


J.  S.C. 


[NOTE. — The  judge,  in  his  discretion,  may  draw  the  requisite  number 
of  tales  jurors,  from  the  jury  boxes.    §867  P.  C.] 


ORDER  OF  COURT. 


The  sheriff  having  summoned 


as  tales  jurors  to  serve  in  the  case  of  the  State  vs 

It  is  ordered  that  the  disqualified  grand  jurors  be  excused 
from  service  in  said  case,  and  that  the  aforesaid  tales  grand 
jurors  be  sworn  to  serve  in  said  case  to  complete  a  panel  of 
eighteen  competent  grand  jurors. 

This day  of ,  19 

J.  S.  C..  !.C. 


AFFIDAVIT  OF  DEFAULTING  JUROR. 


Georgia,  . County. 

In  person  appeared  before  the  undersigned , 

who,  being  sworn,  says  on  oath  that  he  was  summoned  to  attend 
the  Superior  Court  as  a  grand  juror  at  the  last  term  of  said 
court;  that  he  made  default  in  not  attending  said  court,  for 
which  default  he  has  been  fined;  that  his  reason  for  not  attend- 


588  JUSTICES  AND  JUSTICE  COURTS 

ing  said  court  was  that  he  was  sick  and  entirely  unable  to  attend 
[or  state  any  other  fact  relied  on  to  excuse  the  default]. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


Clerk Superior  Court . 


CHALLENGE  TO  THE  ARRAY.    §998  P.  C. 


The  State  ^  In  Superior  Court  of 

vs.  County, Term,  19.  .. 

J  Indictment  for 

Now  comes  the  defendant  in  the  above  named  and  stated  case 
before  plea  and  arraignment  therein,  and  when  and  at  the  time 
the  panel  of  jurors  empaneled  to  try  him  are  put  upon  him,  he 
challenges  the  array  of  said  jurors  and  says  that  the  same  should 
not  be  put  upon  him  and  try  his  case,  and  for  grounds  thereof 
says:  (Here  state  the  grounds  of  challenge,  which  may  be 
"for  any  cause  going  to  show  that  it  was  not  fairly  or  properly 
empaneled,  or  ought  not  to  be  put  upon  him.") 

This  defendant  insists  that  he  is  entitled  to  a  fair  and  proper 
jury,  and  for  each  and  all  of  the  reasons  hereinbefore  set  out, 
he  insists  that  this  panel  should  be  quashed. 

Attorney  for  Defendant. 


JUSTICES  AND  JUSTICE  COURTS,  §§4648-4775. 


SUMMONS  IN  JUSTICE  COURT.    §4715. 


Georgia, County. 

In  the  Justice's  Court  of  the. 


vs. 


District,  G.  M., County, 

Ga. 


To  any  Lawful  Constable  of  said  County — Greeting: 

The  defendant, ,  of  said  district  and 

county  is  hereby  commanded  to  be  and  appear,  personally  or 


JUSTICES  AND  JUSTICE  COURTS  589 

by  attorney,  at  the  next  justice's  court,  to  be  held  in  and  for 

the district,  G.  M.,  of county,  Georgia, 

at  the  court  house  of  said  district,  by  10  o'clock  A.  M.,  on 

the day  of . ,  19 .  . .  . ,  to  answer  to 

plaintiff's  demand  in  an  action  upon  a. .  .  (attach  note,  account, 

or  cause  of  action  sued  on) ,  a  copy  of  which  is  hereto 

attached,  or  in  default  thereof  the  court  will  proceed  as  to 
justice  shall  appertain.     Herein  fail  not. 

Given  under  my  hand  and  official  signature,  this day 

of ,  19 

,  J.  P. 


(NOTE:  Here  attach  copy  of  note,  account  or  cause  of  action  sued 
upon.  The  original  may  be  attached  to  summons  and  copy  of  it  attach- 
ed to  copy  or  copies  given  to  constable  to  serve.) 


COUNTER-AFFIDAVIT  TO  SUIT  ON  ACCOUNT.     §4730. 


(State  the  case.) 

Personally  appeared  before  me ,  the 

defendant  named  in  the  above  stated  case,  who,  on  oath  says 
that  the  foregoing  account  is  not  just  and  fair,  in  whole  or  in 
part,  and  defendant  does  not  owe  the  same  or  any  part  thereof 
[or,  if  in  part  just,  specify  what  part'is  just,  and  what  part  is 
not  due  and  owing]. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,   19 

' 


BREACH  OF  CONTRACT. 


to Dr. 

On  the day  of ,  19.  .  .  .,  the  said  defendant 

made  a  written  contract  with  plaintiff  to  sell  him  500  bushels 
of  prime  corn  at  ninety  cents  per  bushel,  to  be  delivered  to 

plaintiff  at on  the day  of , 

19....  Defendant  failed  and  refused  to  comply  with  this 
contract,  and  plaintiff,  by  reason  thereof,  was  compelled  to  go 
into  the  open  market  and  buy  said  corn  and  pay  one  dollar  and 


590  JUSTICES  AND  JUSTICE  COUKTS 

five  cents  per  bushel  for  it,  being  the  market  price  of  it  on  that 
day  to  plaintiff's  damage  $75.00. 
A  copy  of  said  contract  is  attached. 


[If  the  contract,  was  verbally  made  state  substantially  what  it  was, 
the  breach,  the  date  thereof,  and  resulting  damage.] 


DAMAGES  TO  PERSONALTY. 


to Dr. 

Plaintiff  was  the  owner  of  twenty  sheep  on  the day 

of ,  19.  .  .  . ,  in  said  county.     Defendant  was  on 

that  day  the  owner  of  a  dog,  not  being  at  the  time  on  the  premises 
of  the  owner  or  possessor  or  other  person  having  charge  thereof, 
but  suffered  to  go  at  large.  Said  dog  on  the  day  aforesaid 
attacked  plaintiff's  sheep,  at  that  time  in  plaintiff's  pasture  in 
said  county,  and  killed  twelve  of  them,  each  of  the  value  of 
five  dollars,  and  maimed  five  of  them  to  their  injury  four  dol- 
lars apiece,  and  all  to  the  plaintiff's  damage  $80.00. 

Or, 

That  the  defendant,  in  said  county  on  the day  of 

,  19.  .  .  .,  did  unlawfully  and  wrongfully  shoot 

and  kill  one  bay  horse  four  years  old  named the 

property  of  plaintiff,  and  worth  $90.00,  all  to  the  damage  of 
plaintiff  in  that  sum. 

Or, 

The  defendant  railroad  is  a  corporation  of  said  State,  having 

an  office  and  place  of  doing  business  in  said district, 

county  and  State  as  aforesaid.  On  the day  of , 

19.  .  .  .,  defendant  company  killed  one  mouse-colored  mare  mule, 
six  years  old,  the  property  of  plaintiff,  and  of  the  value  of  one 
hundred  dollars,  by  negligently  and  carelessly  causing  and  suf- 
fering one  of  its  locomotives  to  collide  with  said  mule  on  a 
public  road  crossing  in  said  district  and  county. 

All  to  plaintiff's  damage  $100  as  aforesaid. 


[NOTE. — Let  the  constable  serve  the  defendant  by  serving  any  officer 
or  agent  with  a  copy  of  the  summons,  or  by  leaving  a  copy  at  the  place 
of  transacting  the  usual  and  ordinary  business  of  the  'company  within 
the  jurisdiction  of  the  court.] 


JUSTICES  AND  JUSTICE  COURTS  591 

ACTION  TO  RECOVER  VALUE  OF  MULE. 


to Dr. 

Plaintiff  owned  and  was  in  possession  of  a  certain  tan-colored 

mare  mule  named ,  two  years  old.     Defendant, 

in  said  county,  on  the day  of ,-.  .,  19.  .  .'., 

seized  said  mule  and  took  her  into  his  possession  wrongfully 
depriving  plaintiff  of  the  possession  thereof:  The  defendant 
so  negligently  kept  stabled  and  fed  said  mule  and  so  over-worked 
the  same  that  by  reason  thereof  she  sickened  and  died,  to  wit, 
on  the day  of ,  19 .  .  .  . ,  prior  to  the  bring- 
ing of  this  suit;  said  mule  was  of  the  value  of  $75.00.  De- 
fendant refuses  to  pay  plaintiff  the  same  or  any  part  thereof. 
All  to  the  damage  of  the  plaintiff  $75.00  as  aforesaid. 


ENTRY  OF  SERVICE  OF  SUMMONS.     §§4717,  4718. 


Georgia, County. 

I  have  this  day  served  the  defendant, ,  with 

a  copy  of  the  within  summons,  by  handing  the  same  to  him  in 
person  [or,  by  leaving  the  sanie  at  his  usual  and  most  notorious 
place  of  abode]. 

This day  of ,  19 

Constable. 


JUDGMENT  IN  JUSTICE  COURT. 


Judgment  is  hereby  rendered  by  the  court  for  the  plaintiff 

against   the   defendant for 

dollars,  principal  debt,  and dollars, 

interest  to  judgment,  with  interest  on  said  principal  debt  from 

day  of ,  19 .  .  .  . ,  to day  of .  . , 

19.  .  .  .,  date  of  judgment,  at! per  cent,  per  annum,  and 

dollars  for  attorney's  fees  and  costs  of  suit. 

This day  of ,  19 

,  J.  P. 


592  JUSTICES  AND  JUSTICE  COURTS 

SUBPOENA  FOR  WITNESS. 


Georgia, County. 

To ".: 

You  are  hereby  required  to  be  and  appear  at  the  usual  place 

of  holding  justice  courts  in  and  for  the district,  G.  M., 

of  said  county,  on  the day  of ,  at 

o'clock,  A.  M.,  then  and  there  to  be  sworn  and  testify  as  a 

witness  in  the  case  of against , 

pending  in  said  court.  Herein  fail  not  under  the  penalty  of 
the  law. 

Witness  my  hand  and  official  signature,  this day 

of ,  19 

J.  P. 


JURY  SUMMONS  IN  JUSTICE'S  COURT. 


Georgia, County. 

To : 

By  virtue  of  the  precept  to  me  directed,  you  are  hereby  com- 
manded to  appear  before  the  presiding  justice  at  the  next  justice 

court,  to  be  held  in  and  for  the district,  G.  M.,  in 

and  for  the  county  of ,  on  the day  of 

,  19.  .  .  .,  at  10  o'clock  in  the  forenoon  of  that 

day,  to  be  sworn 'as  a  juror. 

,  J.  P. 


OATH  OF  JURY.     §4744. 


"You  shall  well  and  truly  try  the  causes  depending  between 
the  parties  at  variance,  and  true  verdict  give  according  to 
equity  and  the  opinion  you  entertain  of  the  evidence  produced 
to  you,  to  the  best  of  your  skill  and  knowledge,  without  favor 
or  affection  to  either  of  the  parties,  provided  the  case  or  cases 
submitted  shall  not  be  withdrawn  from  your  consideration ;  so 
help  you  God." 


JUSTICES  AND  JUSTICE  COURTS  593 

FORECLOSURE  OF  MORTGAGE  OF  PERSONALTY. 


AFFIDAVIT. 

Georgia, County. 

Before  me,  the  undersigned,  an  officer  authorized  to  admin- 
ister oaths  in  this  State,  comes ,  who,  being 

duly  sworn,  says  on  oath  that ,  of 

district,  G.  M.,  of  said  county,  is  indebted  to  him  on  the 

annexed  mortgage  the  sum  of dollars  principal, 

and dollars  interest  to  date,  which  amounts  are 

now  due,  and  which  the  said ,  the  mortgagor 

therein,  though  frequently  requested  so  to  do,  fails  and  refuses 
to  pay. 

Affiant  makes  this  affidavit  for  the  purpose  of  foreclosing 
said  mortgage. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


(Official  designation.) 


(NOTE:  The  party  desiring  to  foreclose  can  annex  the  original 
mortgage  to  his  affidavit,  or  if  he  sees  proper,  he  can  attach  a  copy  to 
the  affidavit  and  in  such  case  he  should  attach  to  this  copy  an  affidavit, 
the  form  of  which  may  be  as  follows:) 


Georgia, County. 

Personally    came    before    the   undersigned    attesting   officer, 

,  the  subscriber,  who,  being  duly  sworn,  on 

oath  says  that  the  copy  mortgage  hereto  attached  is  a  true  copy 
of  the  original  mortgage  which  affiant  holds,  and  which  he 
desires  to  foreclose. 

Sworn  to  and  subscribed  before  me,  this 
day  of.. ,  19 


AFFIDAVIT  WHERE  DEBT  Is  NOT  DUE. 


Georgia, County. 

Before  me,  the  undersigned,  an  officer  authorized  to  admin- 
ister oaths  in  this  State,  comes ,  who,  being 


594  JUSTICES  AND  JUSTICE  COURTS 

duly  sworn,  says  on  oath  that ,  of  the 

district,  G.  M.,  of  the  said  county,  is  indebted  to  him  on  the 

mortgage  annexed  hereto,  the  sum  of dollars 

principal,  with  interest  thereon  from  the ....  day  of , 

19.  .  .  .,  at  the  rate  of per  cent,  per  annum  until  paid, 

which  sum  will  become  due  on  the day  of , 

19.  ...     Deponent  further  swears  that  the  said * 

"is  actually  removing  (or  about  to  remove)  beyond  the  limits 
of  said  county." 

Affiant  makes  this  affidavit  for  the  purpose  of  foreclosing  said 
mortgage. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


(Official  designation.) 


[*NOTE. — Any  of  the  ordinary  grounds  for  attachment  may  be  in- 
serted in  the  affidavit  such  as  the  defendant  "absconds,"  "resides  out 
of  the  State,"  "is  causing  his  property  to  be  removed  beyond  the  limits 
of  the  State,"  "conceals  himself,"  "resists  legal  arrest,"  or  "is  seeking 
to  remove  the  said  property  beyond  the  limits  of  the  State."] 


AFFIDAVIT  WHERE  MORTGAGOR  RESIDES  WITHOUT  THE  STATE. 


Georgia, County. 

Before  me,  the  undersigned,  an  officer  authorized  to  admin- 
ister oaths  in  this  State,  comes ,  who,  being 

duly  sworn,  says  on  oath  that ,  a  non-resident 

of  said  State,  is  indebted  to  him  on  the  mortgage  annexed  hereto, 

the  sum  of dollars,  principal,  and.  .' 

dollars,  interest  to  date,  which  amounts  are  now  due  and  un- 
paid, and  that  the  property  mentioned  in  the  said  mortgage  is 
in  said  county,  and  he  makes  this  affidavit  for~the  purpose  of 
foreclosing  said  mortgage. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


(Official  designation.) 


JUSTICES  AND  JUSTICE  COURTS  ,595 

MORTGAGE  Fi.  FA. 


To  All  and  Singular  the  Constables  of  said  State,  Greeting : 
You  are  hereby  commanded  that  of  the  goods  and  chattels 

of of  the district,  G.  M.,  of  said 

county  to  wit -.  [describe  the  property  as  set  out  in  the 

mortgage] you  cause  to  be  made  the  sum  of 

dollars  and cents  for  principal,  and 

dollars  and cents  as  interest  to  the day  -of 

,  19 .  .  .  . ,  (and  all  future  interests  at  the  rate  of 

eight  per  cent,  per  annum),  and dollars  and 

cents  costs  of  suit,  which  said  amounts  are  due 

on  the  foreclosure  of  a  mortgage  on  said  property  made  before 

me  this day  of ,   19 And  have  you 

the  said  sums  of  money,  together  with  this  writ,  at  the  justice's 
court  aforesaid,  at  the  next  term  after  said  money  can  be  law- 
fully made  to  be  rendered  to  the  said as  his 

principal,  interests  and  costs  as  aforesaid. 

Given  under  my  hand  and  official  signature,  this day 

of ,"l9 

(Official  designation.) 


REPLEVY  BOND  IN  SUCH  CASES. 


Georgia, County. 

Know  all  men  by  these' presents,  that  we, , 

as  principal,  and ,  as  security,  acknowledge 

ourselves  held  and  firmly  bound  unto ,  plaintiff 

in  fi.  fa.  in  the  sum  of dollars,  for  the  payment 

of  which  we  bind  ourselves,  our  heirs,  executors  and  adminis- 
trators, jointly  and  severally  by  these  presents.  Signed,  sealed 
and  dated  this day  of ,  19.  ... 

The  condition  of  this  obligation  is  as  follows : [giye 

official  designation  of  levying  officer] ,  of  said  county, 

having  levied  upon  certain  personal  property,  to  wit : 

[describe  the  property  as  in  the  entry  of  levy] as  the 

property  of  the  said by  virtue  of  a  certain  chattel 

mortgage  fi.  fa.  issued  out  of  the court  of 

county  aforesaid,  upon  the  foreclosure  of  a  certain  mortgage 


596  JUSTICES  AND  JUSTICE  COURTS 

executed  by  the  said by  the  said ; 

and  the  said having  filed  an  affidavit  of  illegality 

thereto. 

Now,  should  the  said return  the  said  mort- 
gaged property  when  called  for,  by.  .  .  [give  official  designation 
of  levying  officer]  ...  as  aforesaid,  then  this  bond  to  be  void, 
else  of  force. 

This day  of..' ,  19 

Principal  [L.  S.] 

Security    [L.  S.] 

Executed  in  the  presence  of  and  approved 
by  me ,  J.  P. 


FI.  FA.  IN  FORMA  PAUPERIS  IN  ILLEGALITY  PROCEEDINGS. 


(State  the  case.) 

Mortgage  Fi.  Fa.  returnable  to Term,  19.  .  .  ., 

of  the Court  of County. 

Illegality  of  Execution. 

Georgia, County. 

Personally  before  me, ,  a  justice  of  the 

peace  in  and  for  said  county,  came ,  who, 

being  duly  sworn,  says  on  oath  that  he  has  been  advised  and 
believes  that  his  grounds  of  illegality  sworn  to  in  the  above- 
stated  case  will  be  sustained,  and  that  from  poverty  he  is  unable 
to  give  bond  and  security  required  by  law  in  such  cases. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


[NOTE. — For  form  of  affidavit  of  illegality  and  subsequent  proceedings 
thereof,  see  ante,  pages  461-464.] 


JUDGMENT  AGAINST  PRINCIPAL  AND  SURETY. 


(State  the  case.) 

Judgment  is  hereby  rendered  by  the  court  for  the  plaintiff, 

,  against  the  defendant, , 

as  principal,  and and ,  as  sureties, 

for  the  sum  of dollars  and cents,  principal 

debt,  and  the  further  sum  of dollars  and 


JUSTICES  AND  JUSTICE  COUETS  •     597 

cents,  interest,  with  interest  on  the  principal  debt  from 

day  of ,  19.  . .  .,  to day  of , 

19.  . .  .,  date  of  judgment,  at per  cent,  per  annum,  with 

costs  of  suit. 

This day  of ,  19 

J.  P. 


CLAIM. 

• 

Georgia, County. 

Personally  before  me,  the  undersigned,  a  justice  of  the  peace 

in  and  for  said  county,  comes ,  who  being  duly 

sworn,  on  oath  says  that  a  certain . .  .  [describe  the  property  as 

in  levy]  .  .  . ,  levied  on  by ,  L.  C.,  as  the 

property  of ,  by  virtue  of  a  fi.  fa.  issued  from 

the  justice's  court  of  the district,  G.  M.,  of  said 

county,  in  favor  of .  .  .- against , 

is  the  right  and  property  of  deponent,  and  is  not  subject  to 
said  fi.  fa. 


Sworn  to  and  subscribed  before  me,  this 

day  of ,   19 

.,J.  P. 


CLAIM  BOND. 
(See  ante,  page  356.) 


FORTHCOMING  BOND. 
(See  ante,  page  357.) 


Amendment  to  plea  may  be  treated  as  a  new  and  distinct  plea  without 
reference  to  the  original  plea,  if  such  amendment  constitutes  com- 
plete answer.  125/G7G  (54  S.  E1.  753). 

Exhibit.  Where  suit  is  not  on  note  or  account,  copy  of  cause  of  action 
should  be  attached,  and  where  neither  the  summons  nor  the  ex- 
hibit shows  nature  of  the  claim,  suit  will  be!  dismissed.  121/275 
(48  S.  E.  940). 

Form.  Distinctions  as  to  forms  of  action  observed  in  superior  court  do 
not  obtain  in  justice's  court.  15  App.  811,  814  (84  S.  E.  211). 


598  LANDLORD  AND  TENANT 

Pleading.  Great  nicety  of  pleading  is  not  required;  pleadings  are  gen- 
erally sufficient  if  defendant  is  informed  thereby  of  nature  of  the 
plaintiff's  demand  against  him.  17  App.  744,  745  (88  S.  B.  403); 
15  App.  455,  456  (83  S.  B.  896);  13  App.  416  (79  S.  E.  226).  All 
of  pleadings  required  in  justice's  court  is  a  summons  to  which  is 
attached,  at  time  of  issuing  it,  cause  of  action  sued  on.  15  App. 
811,  814  (84  S.  E'.  211). 

Summons.  "To  the  defendant"  named  in  caption,  not  in  body  sufficient. 
127/6  (55  S.  E.  1032). 

Verification.  Where  plaintiff  verified  his  account,  unverified  answer 
was  properly  stricken  and  judgment  entered  for  plaintiff.  10  App. 
'  278  (73  S.  E.  350).  Verification  may  be  added  by  amendment. 
12  App.  62  (86  S.  E.  760).  Plea  to  jurisdiction  must  be  verified. 
fl/208;  17/573.  Verified  plea  to  unconditional  contract  is  not 
required.  125/43  (53  S.  E.  767). 

Writing. '  Plea  of  breach  of  warranty  or  recoupment  to  attachment  for 
purchase  money  need  not  be  in  writing.  122/318  (50  S.  E,  92). 
Pleas  are  not  ordinarily  required  to  be  in  writing.  125/43  (53  S. 
E.  767).  See  Code,  §4739). 


LANDLORD  AND  TENANT.     §§3690-3715. 


NOTE  CHEATING  LANDLORD'S  SPECIAL  LIEN.  §§3348  (2),  3702. 


Georgia,  County.  ,  19 .... 

$ On  or  before  the ,  19 , 

promise  to  pay ,  landlord,  or  order, 

dollars,  for  supplies,  money,  stock,  farming  utensils,  etc.,  fur- 
nished by  him  for  the  purpose  of  making  the  crops  of  the 
present  year,  on  the  premises  occupied  by  me  as  the  tenant  of 

said in county,  Georgia,  and  of 

necessity  in  the  making  of  such  crops. 

I  hereby  waive  all  rights  of  homestead  and  personalty  and 
of  either,  as  against  this  note ;  and  should  the  same  be  collected 
by  an  attorney  or  by  law,  I  bind  myself  and  contract  to  pay  all 
costs  of  suit,  and  ten  per  cent,  attorney's  fees  on  principal  and 
interest,  to  be  covered  with  and  in  the  same  manner  as  said 
principal  and  interest.  And  should  this  obligation  not  be  paid 
at  maturity,  it  is  to  draw  interest  from  date  at  eight  per  cent, 
per  annum  until  paid. 

In  consideration  of  the  advances  for  which  the  above  note  is 

given I  hereby  give  to  the  said 

or  order,  a  lien  on  my  entire  crops  to  be  grown  the  present  year, 
and  on  my  stock  of  all  kinds,  consisting  of 


LANDLORD  AND  TENANT  599 

and  agree  that  said  lien  may  be  enforced  as  a  lien  or  mortgage 
at  the  option  of  the  holder.  I  hereby  covenant  that  I  will  not 
otherwise  encumber  said  crops  and  stock  by  lien  or  mortgage, 
and  that  there  is  no  previous  lien  or  mortgage  existing  on  the 

same  except 

And  I  further  contract  and  specially  agree,  as  a  part  of  the 
consideration  upon  which  said  advance  is  made,  that  the  first 
cotton,  corn  or  other  produce  I  get  ready  or  have  for  market  is 
to  be  tendered,  or  a  sufficiency  thereof,  to  the  holder  of  this 
obligation,  in  settlement  of  same  at  market  price  of  such  produce. 

Witness hand.  .    and  seal.  . 

[SEAL,.] 

[SEAL.] 

Executed  in  presence  of 

,J.r. 


LANDLORD'S  ENDORSEMENT.  §§3348  (2),  3372. 


Tenant. 

For  value  received,  I  hereby  assign,  transfer  and  endorse  the 

within  tenant's  obligation  to ,  or  order,  under 

and  according  to  the  provisions  of  Civil  Code,  §3348  (2), 
relating  to  transfer  of  landlord's  liens. 

This day  of ,  19 

Landlord. 

I  guarantee  the  payment  of  within  obligation,  and  hereby 
waive  my  claim  for  rent  until  this  debt  is  paid. 

Landlord. 


SPECIAL  CONTRACT  OF  TENANT  CREATING  LIEN  OF  LANDLORD 
FOR  SUPPLIES  FURNISHED.     §§3348,  3702. 


(Another  form.) 

Georgia, County. 

A  special  lien  is  hereby  created  by  me,  the  undersigned,  in 

favor  of  my  landlord, ,  and  his  assigns,  upon 

all  the  crops  that  shall  be  raised  during  the  year upon 

the  lands  rented  by  me  for  the  said  year  from  said 

The  special  lion  hereby  created  is  given  him  for  the  purpose  of 


600  LANDLORD  AND  TENANT 

securing  payment  of  any  debt  not  exceeding dollars 

that  I  may  contract  with  the  said for  supplies, 

money,  stock,  farming  utensils,  or  other  articles  of  necessity  to 
make  crops  furnished  during  said  year  upon  the  lands  rented 

as  aforesaid,  the  debt  for  which  is  to  become  due  on  the 

day  of ,19 


ASSIGNMENT  OF  FOREGOING  LIEN.     §3348  (2). 


For  value  received  I  hereby  assign  and  transfer  to , 
the  lien  created  by  the  within  contract. 
This day  of ,  19 


FORECLOSURE  OF  LANDLORD'S  LIEN  FOR  SUPPLIES. 
§§3366,  3702. 


Georgia, County. 

Personally  before  me,  ,  the  undersigned, 

an.  officer  of  said  State  authorized  to  administer  oaths,  came 

,  who,  being  duly  sworn,  says  on  oath  that, 

in  the  year  19 ....  affiant  rented  certain  lands  in 

county,  to  wit acres  situated  [give  general 

description  of  land]  for  the  purpose  of  making  a  crop  thereon, 
and  that  during  said  year,  and  during  the  existence  of  said 

contract  of  renting,  affiant  as  landlord  furnished  to 

as  his  said  tenant [specify  the  supplies,  money, 

stock,  farming  utensils  and  provisions  furnished  to  tenant]  for 
the  purpose  of  making  a  crop,  all  of  the  aggregate  value  of 
dollars,  all  of  said  articles  so  furnished  as  afore- 
said, being  articles  of  necessity  to  make  crops. 

Affiant  says  that  after  said  sum  of dollars 

became  due,  to  wit,  on  the day  of ,  19 .  .  .  . , 

he  demanded  payment  thereof  of  his  said  tenant  the  said 

,  and  that  said then  refused  and 

still  refuses  to  pay  the  same.  Affiant  makes  this  affidavit  within 
one  year  after  said  debt  for  supplies  as  aforesaid  became  due, 
and  for  the  purpose  of  foreclosing  his  special  lien  as  landlord 

upon  the  crops  raised  by  his  said  tenant,  the  said , 

upon  lands  rented  as  aforesaid,  for  the  said  year  of , 

to  wit  [describe  the  crops  against  which  the  lien  is  sought  to  be 
foreclosed]. 


LANDLORD  AND  TENANT  601 

Affiant  prays  that  an  execution  may  issue  for  said  amount 
of dollars,  and  the  costs  as  provided  by  law. 

Sworn  to  and  subscribed  before  me,  this 

day  of. ,19 

,J.P. 


EXECUTION  ISSUED  UPON  FOREGOING  AFFIDAVIT.     §3366  (4). 


Georgia, County. 

To  All  and  Singular  the  Sheriffs  of  said  State  and  their  Lawful 
Deputies : 

You  are  commanded  that  of  the  goods  and  chattels,  lands  and 

tenements  of  one ,  of  said  county,  and  of  the 

property  of  the  said ,  to  wit  [describe  the 

property  on  which  the  special  Hen  is  claimed  as  set  out  in  the 
affidavit],  now  stored  and  kept  [describe  where  such  property 

is  situated] ,  being  the  crops  of  lands  rented  by  said 

of  said for  the  year ,  you  make  or 

cause  to  be  made  the  sum  of dollars,  which 

,  for  the  purpose  of  foreclosing  his  special  lien 

as  landlord,  made  affidavit  before  me  this  day  is  due  and  owing 

to  him  from  the  said ,  his  tenant,  for  supplies, 

money,  stock,  farming  utensils  and  provisions,  furnished  said 

tenant  by  him,  the  said ,  during  said  year  of 

for  the  purpose  of  making  the  crop  on  the  land 

aforesaid  rented  to  the  said by  the  said 

and  of  necessity  to  make  such  crop  for  the  year 

,  together  with  all  interests  which  may  become  due 

on  said dollars,  and dollars  costs  of  suit. 

And  have  you  the  said  sums  of  money,  together  with  this  writ 

at  the  next  Superior  Court of  said  county,  to  render 

unto  the  said his  principal,  interest  and  costs 

aforesaid. 

Witness  the  Honorable ,  judge  of  said  court, 

this day  of ,  19 .... 

'' Clerk.' 


[NOTE. — If  the  amount  is  within  the  jurisdiction  of  the  justice's  court, 
the  writ  should  be  directed  to  the  constables  of  said  county,  and  made 
returnable  to  the  proper  court  of  the  militia  district,  and  affidavit  made 
before  the  justice  of  the  peace.] 


602  LANDLORD  AND  TENANT 

FORECLOSURE  OF  ASSIGNED  LIEN  FOR  SUPPLIES. 


Georgia, County. 

Personally  before  me,  the  undersigned, ,  a 

justice  of  the  peace  in  and  for  said  county,  came , 

who,  being  duly  sworn,  says  on  oath  that  on  the day 

of ,  19.  .  .  . ,  one ,  of  the 

district,  G.  M.,  of  said  county,  executed  and  delivered  to.  ... 

a  certain  contract  in  writing,  a  copy  of  which  is 

hereto  attached. 

That  on  the day  of ,  19.  .  .  .,  the  said 

assigned  to  affiant  the  lien  created  by  said 

contract  in  words  and  figures  as  follows  which  will  be  found 
endorsed  on  back  of  said  contract  [set  out  the  assignment]  : 

Affiant  shows  that  during  said  year  19.  .  .  .  said 

furnished  the  said the  following  articles, 

to  wit:  [describe  the  articles  supplied],  of  the  aggregate  value 

of dollars,  said  articles  being  such  as  were  of 

necessity  to  make  the  crop,  and  being  furnished  by  the  said 

for  the  purpose  of  making  a  crop  for  the  year 

19.  ...  upon  the  lands  rented  by  the  said from 

the  said for  the  said  year.  Affiant  avers  that 

said  sum  of dollars  is  due,  and  that  since  it  became 

due  he  demanded  payment  of  the  same  from  the  said 

and  that  said refused  and  still  refuses 

to  pay  the  same  or  any  part  thereof. 

Affiant  makes  this  affidavit  within  one  year  from  the  time  said 

dollars  became  due  for  the  purpose  of  foreclosing 

the  special  lien  covered  by  the  contract  aforesaid  and  the  assign- 
ment thereof  to  him. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


FORECLOSURE  OF  LANDLORD'S  LIEN  FOR  SUPPLIES,  WHERE 
DEBT  Is  NOT  DUE. 


(The  foregoing  form  may  be  used  striking  out  therefrom  the 
allegation  that  the  debt  is  due  and  inserting  in  lieu  thereof  the 
following:) 


LANDLORD  AND  TENANT  603 

Affiant  shows  that  the  said  sum  of dollars  is  not 

yet  due,  but  that  the  said is  removing  [or 

about  to  remove]  his  crop  from  the  premises  of  affiant,  and  that 

he  has  demanded  payment  of  the  said  sum  of dollars 

after  information  received  by  affiant  that  said 

is  removing  [or  about  to  remove]  said  crop,  as  aforesaid,  and 

that  the  said refused  when  so  demanded  as 

aforesaid,  and  still  refuses  to  pay  said dollars,  or 

any  part  thereof. 


SKELETON  FORM  OF  CONTRACT  WITH  EMPLOYEE,  TENANT 
OR  CROPPER.    §3712. 


Georgia, County. 

This  indenture  witnesses,  that ,  as  employer 

[landlord  or  landowner],  and ,  as  employee 

[or  cropper]  have  agreed  and  contracted,  and  hereby  agree  and 
contract,  as  follows:  [State  what  the  contract  is.] 


The  foregoing  contract  duly  executed  before 

me,  this day  of ,  19.  ... 

,J.P. 


LEASE  CONTRACT  FOR  CITY  PROPERTY. 


Georgia, County. 

This  agreement,  made  and  entered  into  this day 

of ,  19 .  .  .  . ,  between ,  of  the 

first  part,  and ,  of  the  second  part,  both  of 

said  county: 

Witnesseth :  That  the  said  party  of  the  second  part  has  this 
day  rented  and  leased  from  the  said  party  of  the  first  part  a 
certain  house  and  lot  [describe  the  property]  known  as  Number 

street,  for  the  term  of commencing 

on  the day  of ,  19.  .  .  .,  and  ending  on  the 

day  of ,  for  which  the  party  of  the  second 

part  agrees  to  pay  said  party  of  the  first  part dollars 

per  month,  in  advance;  and  on  his  failure  to  pay  the  same 


604  LANDLORD  AND  TENANT 

i 

promptly,  when  due,  said has  the  right  and 

option  to  declare  this  lease  void,  cancel  the  same,  and  take  pos- 
session of  the  premises. 

Said  party  of  the  second  part  hereby  waives  and  renounces 
for  himself  and  family  any  and  all  homestead  and  exemption 
rights  he  may  have  under  or  by  virtue  of  the  laws  of  this  State 
or  of  the  United  States,  as  against  any  liability  that  may  accrue 
under  this  contract. 

Said  party  of  the  second  part  further  agrees  to  repair  at  his 
own  expense  any  damage  to  water  pipes  caused  by  freezing,  or 
any  neglect  of  said  party  of  the  second  part,  and  to  pay  the 
water  rent  on  said  premises ;  and  not  to  sublet  the  premises, 

or  any  part  thereof,  without  the  written  consent  of  said 

and  he  further  agrees  that  he  will  deliver  said  premises 

at  the  expiration  of  the  lease  in  as  good  repair  as  when  first 
received,  natural  wear  and  tear  excepted. 

Said  party  of  the  first  part  agrees  that  should  the  premises 
above  described  be  destroyed  by  fire  or  so  damaged  as  to  become 
untenable,  the  rent  shall  cease  from  the  date  of  the  fire. 

Lessor  reserves  the  privilege  to  put  a  card  "For  Sale"  on  said 
property  at  any  time,  and  to  put  a  card  "For  Rent"  on  said 
property  thirty  days  before  the  termination  of  this  contract, 
and  to  enter  upon  said  premises  at  any  time  for  the  purpose  of 
making  repairs  and  improvements  thereon,  or  upon  the  building 
of  which  said  premises  constitute  a  part ;  or  to  enter  upon  said 
premises  to  repair  or  improve  lessor's  adjoining  property,  if 
any.  Lessee.  .  agree.  .  to  pay  ten  per  cent,  attorney's  fees  on 
any  part  of  said  rental  that  may  be  collected  by  suit  or  by  an 
attorney  after  the  same  is  past  due;  and  to  be  responsible  for 
all  damages  to  said  premises,  or  to  the  property  of  lessee's  other 
tenants  in  said  building  or  adjoining  building,  caused  by  the 
overflow  or  breakage  of  waterworks  in  said  premises  during 
this  lease. 

[Signed  in  duplicate.] 

In  witness  whereof,  we  have  hereunto  set  our  hands  and  seals, 
the  day  and  year  first  above  written. 

[SEAL.] 

[SEAL.] 

Executed  in  the  presence  of 


LIENS  605 

WARRANT  AGAINST  TENANT  HOLDING  OVER.     §5386. 
(See  Dispossessory  Warrant,  ante,  pages  425-428.) 


DISTRESS  WARRANT.     §§5390-5394. 
(See  Distress  Warrant,  ante,  pages  428-430.) 


LIENS.     §§3329-3376. 


CONTRACTOR'S  LIEN.     §§3329,  3352,  3353. 


FORM  OF  DECLARING  CLAIM  OF  LIEN  ON  REAL  ESTATE.    §3353. 


Georgia, County. 

"A.  B.,  a  mechanic,  contractor,  materialman,  machinist, 
manufacturer,  or  other  person  (as  the  case  may  be),  claims  a 
lien  on  the  house,  factory,  steam-mill,  machinery  or  railroad 
(as  the  case  may  be),  and  the  premises  or  real  estate  on  which  it 
is  erected  or  built,  of  C.  D.  (describing  the  houses,  premises, 
real  estate  or  railroad),  for  building,  repairing,  improving  or 
furnishing  material  (or  whatever  the  claim  may  be)." 


MATERIAL  MAN  FURNISHING  MATERIAL  AT  INSTANCE  OF 
CONTRACTOR.     §3352   (2). 


,  a  materialman  engaged  in  the  business 

of  furnishing  material  for  the  improvement  of  real  estate,  claims 
a  lien  upon  the  building,  and  the  premises  or  real  estate  upon 

which  it  is  erected,  of which  said  real  estate 

12  described  as  follows,  to  wit:  [describe  the  realty.] 

Said  lien  is  claimed  by  the  undersigned  for  furnishing  ma- 
terial used  in  the  construction  and  erection  of  said  building  and 

the  improvement  of  said  real  estate,  to  the  amount  of 

dollars,  besides  interest  which  said  material  was  furnished  by 

the  undersigned  to  and  at  the  instance  of 

a  contractor  employed  by  the  owner  and  engaged  in  the  con- 
struction and  erection  of  said  building  and  in  the  improvement 
of  said  real  estate.  This  lien  is  recorded  within  three  months 
after  said  material  was  furnished  by  the  undersigned. 

This day  of ,  19 


606  LIENS 

CLAIM  OF  LIEN  ON  REAL  ESTATE,,  FORM  OF  DECLARING. 
§3353  (2). 


A.  B.,  a  mechanic,  (contractor,  materialman,  machinist 
manufacturer,  or  other  person,  as  the  case  may  be),  claims  a 
lien  on  the  house,  factory,  steam-mill,  machinery  or  railroad 
(as  the  case  may  be),  and  the  premises  or  real  estate  on  which 
it  is  erected  or  built,  of .  .  .  [describing  the  houses,  premises,  or 
real  estate  or  railroad]  .  .  .for  building,  repairing,  improving  or 
furnishing  material  (or  whatever  the  claim  may  be),  which 
claim  is  asserted  and  recorded  within  three  months  since  the 
completion  of  the  work  in  the  office  of  the  clerk  of  the  superior 
court  of  the  county  in  which  such  real  estate  is  located. 


[NOTE. — The  claim  of  lien  must  be  recorded  within  three  months 
after  the  completion  of  the  work,  or  within  three  months  after  such 
material  or  machinery  was  furnished,  in  the  office  of  the  clerk  of  the 
Superior  Court  in  the  county  where  such  property  is  situated.  This 
applies  to  all  mechanics  of  every  sort  (who  have  taken  no  personal 
security  therefor),  for  work  done  or  material  furnished  in  the  build- 
ing, repairing,  or  improving  the  real  estate  of  their  employer;  all  con- 
tractors, materialmen  and  persons  furnishing  materials  for  the  im- 
provement of  real  estate;  all  contractors  for  building  factories,  or  fur- 
nishing material  for  the  same  or  machinery  for  the  same;  all  me- 
chanics and  manufacturers  of  machinery  (including  corporations),  who 
may  furnish  or  put  up  in  any  county  of  this  State  any  steam  mill  or 
other  machinery,  or  who  may  repair  the  same;  and  all  contractors  to 
build  railroads.  Each  of  the  persons  named  have  a  special  lien  on  such 
real  estate,  factories  or  railroads.  §3352.  The  action  for  the  recovery 
of  the  amount  claimed  must  be  commenced  within  twelve  months  from 
the  time  the  same  shall  become  due.  §3353  (4).] 


VERDICT  SETTING  UP  LIEN. 


We,  the  jury,  find  for  the  plaintiff  the  sum  of 

dollars,  principal  debt, dollars  interest,  and  costs 

of  suit.     We  further  find  that  the  plaintiff's  lien  as 

be  set  up  and  established  upon  the  property  described  in  the 

petition  for  the  amount  of  this  verdict.     This day 

of ,19 

Foreman. 


LIENS  607 

JUDGMENT  THEREUPON. 


Whereupon  it  is  considered,  ordered  and  adjudged  by  the 

court  that  the  plaintiff do  have  and  recover  of 

the  defendant the  sum  of dollars, 

principal  debt, dollars,  interest,  and 

dollars,  costs  of  suit.     It  is  further  considered,  ordered  and 

adjudged  by  the  court  that  the  plaintiff's  lien  as  a 

to  the  amount  of  said  principal,  interest  and  costs,  be  set  up 
and  established  upon  the  following  property:  [describe  the  prop- 
erty as  described  in  the  petition  to  foreclose.  This day 

of.' ,  19 

Attorney  for  Petitioner. 


EXECUTION  UPON  THE  ABOVE  JUDGMENT. 


Georgia, County. 

To   All   and   Singular   the   Sheriffs   of  this   State,   and   their 

Deputies : 
We  command  you,  that  of  the  goods  and  chattels,  lands  and 

tenements  of more  especially  of.  .-.  [describe 

the  .special  property  which  is  the  subject  of  the  lien,  as  described 
in  the  petition  to  foreclose].  .  .you  cause  to  be  made  the  sum 

of dollars  and cents,  principal,  and  the 

further  sum  of dollars  and cents  for 

interest  due  to  the day  of ,   19.  . .  .,   and 

a].-o  the  further  sum  of dollars  and. cents 

for  attorneys'  fees ;  and  also  the  further  sum  of 

dollars  and cents  for  costs,  with  interest  on  the  prin- 
cipal sum  from  the day  of ,  19.  .  .  .,  at 

per  cent,  per  annum,  which  at  our  Superior  Court  for 

suid  county,  to  wit :  on  the day  of .  .  .,  19.  . .  ., 

,  as  plaintiff,  recovered  against  said 

,  as  defendant  for  principal,  interest  and  costs ;  and  that 

you  have  the  several  sums  of  money  before  the court 

of  said  county  on  the  first  Monday  in next,  with 

this  writ  to  render  to  the  said  plaintiff  the  principal,  interest 
and  cost  aforesaid. 

Witness  the  honorable ,  judge  of  said  court, 

this day  of ,  19.  ... 

,  Clerk. 


608  LIENS 

FORECLOSURE  OF  LIEN  ON  PERSONALTY — GENERAL  FORM 
UNDER.     §3366. 


Georgia, County. 

Before  me, ,  the  undersigned,  an  officer  of 

this  State  authorized  to  administer  oaths,  personally  appeared 
,  who,  on  oath,  says  that  affiant  is  a 

,  that of  said  county,  is 

indebted  to  affiant  as  such  in  the  sum  of dollars 

for.  .  .  (here  state  grounds  and  nature  of  lien.)  That  said 
amount  is  due  and  unpaid,  the  same  having  become  due  on 

the day  of ,19 That  on  the 

day  of ,  19.  .  .  .,  he  made  a  personal  demand  for 

payment  of  the  same  upon  the  said ,  and  that 

said then  and  there  refused  and  still  does 

refuse  to  pay  the  same. 

Deponent  has  completed  and  performed  his  contract  as  afore- 
said. 

Wherefore,  deponent  now  comes,  within  one  year  after  said 
debt  became  due,  and  makes  this  affidavit  for  the  purpose  of 

foreclosing  his  lien  upon  the  said and  prays 

that  an  execution  may  issue  as  provided  by  law. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

' 


EXECUTION  THEREUPON.    §3366  (4). 


Georgia, County. 

To  All  and  Singular  the  Sheriffs  of  said  State  and  their  Lawful 

Deputies : 
You  are  hereby  commanded  that  of  the  goods,  chattels,  lands 

and  tenements  of ,  of  said  county,  and  of 

certain  personal  property,  the  property  of  the  said , 

to  wit :  . .  .  [describe  the  property  on  which  the  special  lien  is 
claimed,  as  in  affidavit]  .  .  .you  make,  or  cause  to  be  made,  the 

sum  of dollars  and cents,  principal,  the 

further  sum  of dollars  and .cents, 

interest  up  to  the day  of ,  19 .  .  .  . ,  and 

also  the  further  sum  of.  .  .dollars  and.  ,  .  .cents 


LIENS  609 

for  costs,  which  one for  the  purpose  of  fore- 
closing on  said  property  his  lien  as this  day 

made  oath  before  me,  was  due  and  owing  to  him  from  the  said 

And  have  you  the  several  sums  of  money 

at  the court  of in  said  county,  to  be 

held  on  the day  of ,  19.  . . .,  to  render  to 

the  said ,  his  principal,  interest  and  costs,  as 

aforesaid.     And  have  you  then  and  there  this  writ. 

Witness  the  honorable ,  judge  of  said  court, 

this day  of ,  19.  ... 

,  Clerk. 


COUNTER-AFFIDAVIT.    §3366  (6,  7). 
Plaintiff  in  fi.  fa. 


vs. 


Foreclosure  of lien. 

Execution  from .  .    .  .  Court  of . 


Principal,  $ 
Defendant  in  fi.  fa. 

Personally  appeared  before  me, ,  a  justice 

of  the  peace  for  said  county, ,  and  tenders 

this  his  counter-affidavit,  and  on  oath  says: 

1.  That  he  is  not  indebted  to  plaintiff  in  the  sum  claimed, 
nor  in  any  sum  whatever. 

2.  [or]   That  the  debt,  the  collection  of  which  is  sought  to 
be  enforced  by  the  suing  out  of  the  execution  in  the  above- 
stated  case,  is  not  yet  due. 

3.  [or]   Affiant  denies  that  any  demand  for  payment  of  said 
debt  was  made  upon  him  as  required  by  law. 

4.  [or]   Affiant  says  that  the  demand  made  upon  him  for  the 
payment  of  said  debt  was  made  before  the  same  became  due. 

5.  [or]  Affiant  says  that  more  than  twelve  months  had  elapsed 
since  said  debt  became  due,  and  the  making  of  the  affidavit  to 
enforce  the  collection  of  the  same. 

6.  [or]   Affiant  denies  that  the  said faithfully 

performed  and  completed  his  contract in  this : 

[Set  out  the  particulars  in  reference  to  the  breach  of  contract 
by  plaintiff  in  fi.  fa.] 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


610  LIENS 

MECHANIC'S  CLAIM  OF  LIEN  ON  PERSONALTY,  RECORD  OF. 

§3354. 


"A.  B.,  mechanic,  claims  a  lien  on ....  [here  describe  the 
property]  ...  of  C.  D.,  for  work  done  and  material  furnished 
in  manufacturing  or  repairing  (as  the  case  may  be)  the  same." 


FORECLOSURE  OF  LABORER'S  LIEN  IN  .JUSTICE'S  COURT.    §3334. 


Georgia, County. 

Personally  came ,  who,  on  oath,  says  he  is 

a  laborer;  that  as  sucli  laborer  he  was  recently  employed  by 
of  said  county,  to  work  and  labor 

at  the  following  rate  of  wages 

That  he  himself  did  the  work  according  to  contract,  and  com- 
pleted said  contract  of  labor,  and  of  the  amount  earned  by  him 

the  sum  of dollars  is  now  due  and  unpaid;  that 

he  has  demanded  the  payment  of  said  sum  from  his  said  em- 
ployer since  the  same  became  due,  and  the  same  was  refused: 
Wherefore  deponent  prays  that  execution  may  issue  for  the 

principal  sum  last  above  named,  with  legal  interest  from 

and  all  cost  of  suit. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


J.   P District,   G.   M. 


EXECUTION. 

Georgia, County. 

To  All  and  Singular  the  Constables  of  said  County,  Greeting: 
You  are  hereby  commanded,  that  of  the  goods  and  chattels, 

lands  and  tenements  of you  cause  to  be  made 

by  levy  and  sale dollars,  principal, 

dollars,  interest  to  date  and  cost  of  this  suit,  which  sum  was 
adjudged  against  him  upon  an  affidavit  foreclosing  a  laborer's 
lien  matle  before ,  J.  P.,  for  the 


LIENS  613 

district,  G.  M.,  on  the day  of ,  19.  . .  .,  by 

the  affiant  whose  name  is  subscribed  to  the  foregoing  affidavit 
a?  plaintiff  in  favor  of  such  party. 

And  have  you  this  writ  at  the term,  19.  .  .  ., 

of  the  justice's  court  for  the district,  G.  M.,  to  be 

held  on  the day  of ,  19, .  .  .,  to  render  an 

account  of  your  actings  and  doings  thereon. 

Given  under  my  hand  and  seal,  this  the.  . ,  19.  ... 

J.  P District,  G.  M. 


LEVY  BY  OFFICER. 


Georgia, County. 

Executed  the  within  lien  by  levying  on  the  following  described 

property,  to  wit : 

(said  property  pointed  out  by  the  plaintiff.  . ) 

as  the  property  of  the  defendant this 

day  of ,19 

,  L.  C. 


LABORER'S  SPECIAL  LIEN.  §§3335,  3339. 


AFFIDAVIT   TO    FORECLOSE. 


Georgia, County. 

Personally  appeared  before  me,  the  undersigned  attesting 

officer,  ,  the  subscriber,  who,  being  duly 

sworn,  on  oath  says  that  he  contracted  with , 

of ,  said  county,  at  and  for  the  sum  of 

to  labor  for  him .- from  the  day 

and  year  aforesaid in  the  capacity  of 

That  he  has  faithfully  performed  and  completed  the  said 
contract  of  labor ;  and  that  there  is  now  due  to  him  and  unpaid 

for  said  labor  performed  as  aforesaid  from  the  said 

the  sum  of dollars,  as  principal,  and 

dollars,  as  interest. 

That  the  product  of  said  labor  is 

That  after  the  same  became  due,  to  wit  *.  on  the day 

of ,  19.  .  .  .,  he  made  a  personal  demand  upon 

the  said  debtor  for  the  payment  thereof,  which  .  .  he .  .  then  and 
there  refused.  , 


612  LIENS 

This  affidavit  is  made  within  twelve  months  from  the  time 
said  debt  became  due,  for  the  purpose  of  foreclosing  his  lien  as 
such  laborer  on  said  described  property. 


Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


Notary  Public  and  ex-officio  Justice  of  the 
Peace. 


EXECUTION. 


Georgia,   ............  County. 

To  All  and  Singular  the  Sheriffs  and  Constables  of  said  County  : 

The  foregoing  affidavit  having  been  made  before  me,  you  are 
therefore  hereby   commanded  that  of  said   property   of   said 
debtor,  described  in  said  affidavit,  you  make  by  levy  and  sale 
the  said  sum  of  ............  dollars,  as  principal,  .......... 

dollars,  as  interest  to  this  date  ;  and  one  dollar,  cost  of  this  fore- 
closure.    And  have  you  said  sums  of  money  together  with  this 
writ,  at  the  justice's  court  to  be  held  in  and  for  the  ......... 

district,  G.  M.,  of  said  county,  on  the  ..........  in  .........  , 

19  .  .  .  .  ,  to  render  to  the  said  .................  his  principal, 

interest  and  cost  aforesaid. 

Given  under  my  hand  and  official  seal,  this  ..............  , 

19  ____ 


Notary  Public  and,  ex-officio  Justice  of  the  Peace. 


BOARS,  BULLS,  JACKS  AND  STALLIONS — LIEN  OF  OWNERS  or. 
§§3329  (12),  3361. 


Georgia, County. 

,  as  the  owner  of  a  stallion  known  by  the 

name  of ,  claims  for  the  service  of  said  stallion 

upon  a  certain  sorrel  mare,  the  property  of ,  of 

said  county,  a  lien  upon  the  get  of  said  stallion,  begotten  upon 


LIENS  613 

said  mare  on  the day  of ,  19.  .  .  .,  and  he 

hereby  asserts  and  records  his  lien  thereon. 
This day  of ,  19 


[NOTE. — §3361  covers  also  jacks,  and  blooded  or  imported  bulls  or 
boars;  and  to  make  the  lien  operative  it  must  be  recorded  in  the  office 
of  the  clerk  of  the  Superior  Court  of  the  county  wherein  the  owner  of 
the  mother  resides  within  six  months  after  the  performance  of  the 
services.] 


AFFIDAVIT  FORECLOSING  LIEN. 


Georgia, County. 

Personally  before  me, ,  an  officer  authorized 

to  administer  oaths,  came ,  who  on  oath  says 

that of  the district,  G.  M.,  of 

said  county,  is  indebted  to  him  in  the  sum  of dollars 

for  the  service  of  a  certain  stallion  known  by  the  name  of 

,  said  service  having  been  performed  by  the  said 

stallion  on  the day  of ,  19 .  .  .  . ,  upon  a 

certain  sorrel  mare,  the  property  of  the  said 

at  the  time  of  said  service,  affiant  being  the  owner  of  said 

stallion  at  that  time.  Affiant  avers  that agreed 

to  pay  the  sum  of dollars  for  said  service  and  said 

sum  became  due  on  the day  of ,  19.  .  .  ., 

and  that  he  has  since  demanded  payment  thereof  of  the  said 

,  who  was  the  owner  of  said  get  at  the  time 

of  said  demand,  who  refused,  and  still  refuses  to  pay  the  same 
or  any  part  thereof.  Affiant  caused  to  be  recorded  in  the  office 

o  f  the  clerk  of  the  Superior  Court  of county 

(wherein  the  owner  of  the  mother  of  said  get  resided  at  the 

time  of  said  record),  to  wit:  on  the day  of , 

19.  .  .  .,  his  lien  upon  the  get  of  said  stallion,  which  get  is. .  . 
[describe  it] 

Affiant  further  avers  that  he  makes  this  affidavit  within  one 
year  from  the  time  said  debt  became  due,  and  also  within  one 
year  from  the  birth  of  said  get,  and  for  the  purpose  of  fore- 
closing his  lien  upon  said  get. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,   19 

,J.P. 


614  LIENS 

EXECUTION  THEREUPON.     §3366  (4). 


Georgia, County. 

To  All  and  Singular  the  Constables  of  said  County: 

You  are  hereby  commanded  that  of .  . ,  of 

the district,  G.  M.,  of  said  county,  and  of  a  certain 

....  [describe  the  get]  . .  . ,  said  colt  being  the  issue  of  a  certain 

sorrel  mare,  property  of  said ,  you  make  or 

cause  to  be  made  the  sum  of dollars,  principal 

debt,  which. for  the  purpose  of  foreclosing  his 

lien  on  the  get  of  a  certain  stallion  known  by  the  name  of 

against  said this  day  made 

affidavit  before  me  is  due  and  owing  to  him  for  the  service  of 

said  stallion  upon  said  mare ;  also  the  further  sum  of 

dollars  interest,  and dollars  costs.     And  have  you 

the  said  several  sums  of  money  at  the  next court  to  be 

held  in  said on  the day  of , 

19.  . .  .,  to  render  to  the  said his  principal, 

interest  and  costs  as  aforesaid.     And  have  you  then  and  there 
this  writ. 

Given  under  my  hand  and  official  signature  this day 

of ,19.... 

.  J.  P. 


SAWMILLS — LIENS  FOE  LOGS,  ETC.,  FURNISHED  TO. 
§§3358,  3366  (3). 


AFFIDAVIT. 


Georgia, County. 

Personally  before  me, ,  an  officer  authorized 

to  administer  oaths,  came ,  who  on  oath  says 

that  during  the  year he  furnished  to  a  sawmill  owned 

by  one ,  of  the district,  G.  M.,  of 

said  county,  said  mill  situated  at [describe  the 

timber,  logs,  provisions,  and  other  articles  furnished  to  carry 
on  the  sawmill  work],  the  articles  furnished  as  aforesaid,  being 

of  the  aggregate  value  of dollars.     Affiant  avers 

that  said  sum  of.. dollars  is  due  and  unpaid,  and 

that  after  it  became  due  he  demanded  payment  thereof  of  said 
,  the  owner  of  said  sawmill,  and  that  said 


LIENS  615 

demand  was  refused ;  afliant  makes  this  affidavit  within  one  year 
from  the  time  said  debt  became  due,  for  the  purpose  of  fore- 
closing his  lien  on  said  mill  and  on  [specify  the  number  of  feet 
of  lumber,  etc.]  now  stored  in  the  yard  of  said  mill, .said  lumber 
being  the  product  of  said  mill. 

(L.  S.) 

Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

.,J.R 


EXECUTION    THEREON.       §3366    (4). 


Georgia, County. 

To  All  and  Singular  the  Constables  of  said  County: 

You  are  hereby  commanded  that  of  the  goods  and  chattels, 

lands  and  tenements  of ,  of  the 

district,  G.  M.,  of  said  county,  and  of  a  certain  sawmill  situated 

at in  said  county,  and  known  as , 

and  upon feet  of  lumber  now  stored  in  the  yards  of 

said  mill,  said  lumber  being  the  product  of  said  mill,  you  make 

or  cause  to  be  made  the  sum  of .  . dollars,  which 

for  the  purpose  of  foreclosing  his  lien  for 

timber,  logs,  etc.,  furnished  the  said  mill,  this  day  made  affidavit 

before  me,  is  due  and  owing  to  him  from  said , 

the  owner  of  said  mill,  and  also  the  sum  of dollars 

interest,  and dollars  costs.     And  have  you  the 

said  several  sums  of  money  at  the  next  term  of  the 

court  of  the district,  G.  M.,  of county, 

to  render  unto  the  said And  have  you  then 

and  there  this  writ. 

Given  under  my  hand  and  seal  this day  of , 

19.... 

,  J.  P. 


[NOTE. — Liens  of  pawnees,  innkeepers,  boarding-house  keepers,  livery- 
stable  men,  and  attorneys  at  law  in  possession  of  personal  property  for 
fees  shall  be  satisfied  according  to  the  provisions  of  §3530,  that  is  to 
say,  that  the  person  in  possession  of  the  property,  after  the  debt  be- 
comes due  and  remains  unpaid,  and  after  thirty  days'  notice  to  the 
pawnee  of  his  intention  to  sell  may  sell  in  public  to  the  highest  bidder, 
in  case  where  there  is  no  notice  of  conflicting  lien;  if  there  is  a  con- 
flicting lien,  the  mode  of  foreclosure  pointed  out  in  §3366  shall  be 
pursued.] 


616  LIENS 

STEAMBOAT  LIEN — FORECLOSURE  OF.     §§3355,  3366. 


AFFIDAVIT. 

Georgia, County. 

Personally  before  me,  the  undersigned,  an  officer  authorized 

to  administer  oaths,  comes ,  who,  being  duly 

sworn,  says  on  oath  that  he  was  an  employee  on  the  steamboat 

named ,  navigating  the river  in  said 

state,  affiant's  employment  being  as on  said  boat ; 

affiant  claims  against  the  owners  of  said  boat  for  wages  due  him 
for  personal  services  rendered  by  him,  in  the  capacity  afore- 
said, from  the day  of ,  19 .  . .  . ,  to  the 

day  of ,  19 .  .  .  . ,  the  sum  of 

dollars,  the  same  being  for days  of  labor  at  the 

agreed  compensation  of dollars  per  day. 

Affiant  on  the day  of ,  19.  .  .  .,  after  said 

debt  became  due,  made  a  demand  for  the  payment  thereof  upon 

,  the  owner  of  said  boat  (or  upon 

the  agent  of  the  owner  of  said  boat),  and  payment  of  said  de- 
mand was  refused.  And  now,  within  one  year  after  the  said 

debt  became  due,  the  said comes  and  prosecutes 

his  said  claim;  said  steamboat  is  now  lying  at in 

said  county.  Affiant  asks  that  his  lien  against  said  steamboat 
for  his  wages  as  aforesaid  may  be  enforced  as  provided  by  law. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


(Official  designation.) 


EXECUTION  THEREUPON.      §3366    (4). 


Georgia,   County. 

To  All  and  Singular  the  Constables  of  said  County: 

You  are  hereby  commanded  that  of  the  goods  and  chattels, 

lands  and  tenements  of ,  and  of  the  steamboat 

named ,  now  lying  at ,  in  said  county, 

you  make,  or  cause  to  be  made,  the  sum  of dollars, 

principal  debt,  which for  the  purpose  of  fore- 
closing his  lien  as  an  employee  in  the  capacity  of 

on  said  steamboat,  this  day  made  affidavit  before  me  is  due  and 
owing  to  him,  as  employee  as  aforesaid,  by  said , 


LIENS  617 

owner  of  said  boat,  and  also  the  sum  of dollars, 

interest,  and  the  sum  of dollars,  costs  of  suit. 

And  have  you  said  several  sums  of  money  at  the court 

to  be  held  in  and  for of  said  county  on  the 

day  of ,  19 .  .  .  . ,  to  render  to  said 

his  principal,  interest  and  costs  as  aforesaid.     And  have  you 
then  and  there  this  writ. 

Given  under  my  hand  and  official  seal,  this day 

of ,  19 

,  J.  P. 


STEAM  MILL,  FORECLOSURE  OF  LABORER'S  LIEN  ON. 
§§3329  (10),  3357,  3366  (3). 


AFFIDAVIT. 

Georgia, County. 

Personally  before  me,  the  undersigned,  an  officer  authorized 

to  administer  oaths,  came ,  who,  being  duly 

sworn,  says  on  oath  that ,  of , 

in  said  county,  is  indebted  to  him  in  the  sum  of 

dollars  for  labor  performed  as on  the  steam  mill 

owned  by situated  in  said  county,  from  the 

day  of ,  19 .  .  .  . ,  to  the day  of 

,  19 .  .  .  . ,  at dollars  per  day. 

Deponent  avers  that  as  such he  faithfully 

performed  and  completed  his  contract  of  labor,  and  since  the 

said dollars  became  due  him,  to  wit:  on  the 

day  of ,  19.  .  .  .,  he  demanded  payment 

thereof  of  the  said ,  said  demand  having  been 

then  and  there  refused.  Deponent  makes  this  affidavit  within 

one  year  from  the  time  the  said dollars  became 

due,  and  for  the  purpose  of  foreclosing  his  special  lien  as  a 

laborer  upon  the now  stored  in  said  mill,  said 

being  the  product  of  deponent's  labor,  per- 
formed as as'  aforesaid. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


618  LIENS 

EXECUTION  THEREUPON.      §3366   (4). 


Georgia, County. 

To  All  and  Singular  the  Constables  of  said  County : 

You  are  hereby  commanded  that  of  the  goods  and  chattels, 

lands  and  tenements  of ,  of , 

in  said  county,  and  also  of and , 

now  stored  in  the  steam  mill  of  the  said in  said 

county,  the  product  of  the  labor  of  one ,  you 

make,  or  cause  to  be  made,  'the  sum  of dollars, 

principal  debt,  which  said for  the  purpose  of 

foreclosing  his  lien  as  a  laborer  in  the  capacity  of 

at  said  steam  mill  against  said this  day  made 

affidavit  before  me,  is  due  and  owing  to  him  for  labor  performed 

as  aforesaid,  from  the day  of ,  19.  .  .  .,  to 

the day  of ,  19.  .  .  .,  the  sum  of 

dollars,  interest,  and dollars,  costs.     And  have  you 

said  several  sums  of  money  at  the  next court  to  be 

held  in  and  for in  said  county,  on  the 

day  of ,  19 .  .  .  . ,  to  render  to  the  said 

his  principal,  interest  and  costs  aforesaid.     And  have  you  then 
and  there  this  writ. 

Given  under  my  hand  and  seal,  this day 

of ' ,19 

.  J.  P. 


REPLEVYBOND.    §3366(8). 


Georgia, County. 

Know  all  men  by  these  presents :  That  we, , 

principal,  and ,  security,  acknowledge  our- 
selves jointly  and  severally  bound  to in  the 

sum  of.  ...  [double  amount  claimed]  .  .  .dollars,  subject  to  the 
following  conditions : 

Whereas,  the  said has  sued  out  a  proceeding 

for  the  foreclosure  of  an  alleged  lien  upon  personal  property, 

the  amount  claimed  in  said  proceeding  being dollars: 

and  whereas  execution  has  issued  thereunder  and  been  levied 

by ,  deputy  sheriff  of .county, 

upon  the  following  described  personal  property,  to  wit :  [describe 
the  property  as  in  affidavit]. 


LIENS  619 

Now,  should  the  said pay  to  the  said 

the  amount  of  the  judgment  and  costs  that  he 

may  recover  in  said  case,  or  should  the  said do 

so  for  him,  then  this  bond  to  be  void,  or  else  of  full  force  and 
effect. 

Principal  [L.  S.] 

Security    [L.  S.] 

Attest: 


Sheriff  of County,  Ga. 


Affidavit.  Foreclosure  of  gen'eral  laborer's  lien  upon  realty  can  not  be 
by  affidavit.  84/570  (10  S.  E.  1095).  Upon  personalty  may  be 
foreclosed  by  affidavit  under  Code,  §3366.  Id.;  135/171  (68  S.  E. 
1106). 

Amendment  to  petition  to  foreclose  materialman's  lien  on  certain 
realty,  naming  as  defendants  two  individuals,  only  one  of  whom 
was  named  as  party  to  contract,  by  alleging  that  other  defendant 
also  entered  into  contract,  was  proper.  15  App.  239  (2)  (82  S.  E. 
936).  Defect  caused  by  attempt  to  foreclose  lien  on  real  estate  in 
same  proceeding  with  action  on  an  account  was  cured  by  amend- 
ment striking  all  reference  to  foreclosure  of  lien.  15/455  (2)  .(83 
S.  E.  896).  Affidavits  in  proceeding  to  foreclose  laborer's  liens  and 
final  process  was  amendable.  14  App.  294  (3)  (80  S.  E'.  728). 
Petition  here  was  not  amendable  by  adding  count  alleging  that 
materials  furnished  and  work  done  were  at  instance  and  with  con- 
sent of  both  contractor  and  owner.  143/840  (1)  (85  S.  E.  1018). 
Not  permissible  to  amend  so  as  to  substitute  undisclosed  principal, 
in  place  of  agent,  as  defendant.  125/338  (54  S.  E.  169). 

Assignment.  Claim  of  lien  by  mechanic  may  be  assigned  in  writing. 
141/644  (2)  (81  S.  E.  849). 

Bill  of  particulars.  Ground  for  special  demurrer  where  petition  did 
not  set  forth  bill  of  particulars  or  itemized  account  of  materials 
furnished,  or  when  claim  of  lien  was  filed.  141/682  (2)  (81  S. 
E.  1119). 

Counter-affidavit.  Where  counter-affidavit  is  filed,  foreclosure  affidavit 
became  pleading,  not  evidence.  127/706  (56  S.  E.  995). 

Petition  for  foreclosure  of  mechanic's  lien  is  not  subject  to  general 
demurrer  in  that  it  did  not  allege  that  person  designated  as  true 
owner  made  contract,  where  copy  of  contract  attached  as  exhibit 
does  not  mention  name  of  true  owner  but  refers  to  alleged  agent 
as  owner.  141/644  (3)  (81  S.  E.  849).  Allegation  that  materials 
were  put  up  by  contractor  on  real  estate,  under  his  contract  to 
construct  building,  was  sufficient  allegation  that  materials  were 
used  in  improvement  of  property.  141/682  (2-a)  (81  S.  E.  1119). 

Summons  requiring  defendant  to  answer  suit  upon  an  account  is  not 
so  defective  as  to  be  subject  to  dismissal  merely  because  summons 
also  requires  defendant  to  answer  plaintiff's  demand  to  establish 
a  lien  upon  real  estate.  15/455  (1)  (83  S.  E.  896). 


620  LIMITATIONS  OF  ACTIONS — Lis  PENDENS 

LIMITATION  OF  ACTIONS.     §§4354-4388,  4495-4498. 


PLEA  OF  STATUTE  OF  LIMITATIONS. 


(State  the  case.) 

And  for  further  plea  and  answer,  the  defendant  in  the  above 
stated  case  says,  that  the  right  of  action  of  the  plaintiff,  on  the 
cause  of  action  sued  on,  if  any  he  ever  had,  accrued  more  than 

years  next  before  the  commencement  of  this  suit, 

and  that  his  right  of  action  thereon,  if  any  he  ever  had,  is,  .there- 
fore, barred  by  the  statute  of  limitations.  And  of  this  he  puts 
himself  upon  the  country. 

Attorney  for  Defendant. 


Demurrer  is  proper  where  bar  of  statute  appears  on  face;  otherwise, 

plea  is  proper.    129/700  (2)    (59  S.  E.  905). 
Necessity.     Plea  is  necessary  where  allegations  of  declaration  do  not 

affirmatively  show  bar.    93/320  (2)   (20  S.  E.  242). 
New  promise,  being  basis  of  suit,  it  must  be  alleged.     130/79  (60  S.  E. 

253).    The  new  promise  should  be  alleged  with  sufficient  certainty 

to  enable  defendant  to  plead   intelligently.     66/334.     Where   old 

promise  is  basis  of  suit,   not  necessary   to  allege  new   promise. 

14/661  (3). 
Nonsuit.    Where  action  is  barred  by  statute,  demurrer  or  special  plea  in 

bar,  not  motion  for  nonsuit,  is  proper.    102/248  (3)   (29  S.  E.  430). 
Personal  plea,  plea  of  statute  is.     9  App.  393  (2)    (71  S.  E,  589).     See 

131/409  (62  S.  E.  322). 
Writings  relied  upon  must  be  set  out  either  literally  or  in  substance. 

119/50   (3)    (45  S.  E.  785). 


LIS  PENDENS. 


PLEA.    §§4331,  56Y8. 


(State  the  case.) 

And  now  comes  the  defendant  in  the  above  stated  case,  and 
for  plea  says: 

1.  That  on  the day  of ,  19 ,  plaintiff 

filed  his  petition  returnable  to  the term,  19.  . .  ., 


LOST  PAPERS  621 

of court,  in  said  State,  said  court  having  jurisdiction 

of  the  person  and  subject  matter  thereof. 

2.  That  the  action  in  the  last  court  aforesaid  is  between  the 
same  parties,  and  for  the  same  cause  of  action  as  that  alleged 
in  the  present  petition,  and  is  still  pending  therein,  unde- 
termined. 

Wherefore,  the  defendant  says  that  the  plaintiff  has  no  right 
to  maintain  or  prosecute  the  present  action,  and  says  that  the 
same  should  abate,  and  prays  that  the  same  be  dismissed  at 
plaintiff's  cost. 

Defendant's  Attorney. 


LOST  PAPERS.     §§4191,  5312-5328. 


PETITION  TO  ESTABLISH  OFFICE  PAPER  LOST.     §5312. 


Georgia, County. 

To  the .Court  of  said  County: 

The  petition  of respectfully  shows  that  a 

certain  office  paper,  to  wit,  a  certain  original  petition  [or, 
answer,  declaration,  plea,  bill  of  indictment,  special  presentment, 
or  other  office  paper,  as  the  case  may  be,]  appertaining  to  a 
certain  cause  now  pending  in  said  court  has  been  lost. 

An  exact  copy  of  said  lost  office  paper  [or  a  substantial  copy, 
if  an  exact  copy  can  not  be  had] ,  including  all  entries  that  were 
thereon,  is  hereto  attached. 

Wherefore,  petitioner  prays  that  this  copy  of  said  office  paper 
be  established  by  the  court  instanter. 

This day  of ,  19 

Attorney  for  Petitioner. 


JUDGMENT  ESTABLISHING  LOST  OFFICE  PAPER. 


The  within  petition  of ,  being  a  petition  to 


622  LOST  PAPERS 

establish  a  lost  office  paper,  to  wit,  a ,  coining 

on  to  be  heard,  and  it  satisfactorily  appearing  to  the  court  that 
the  original  is  lost  and  that  the  copy  thereto  attached  is  a  correct 
copy  of  said  lost  office  paper,  it  is  ordered  that  the  said  copy  be, 
and  is,  hereby  established  in  lieu  of  the  lost  original,  with  all  of 
its  force  and  effect. 

This day  of ,  19 

J.  S.  C..  ..C. 


PETITION  TO  ESTABLISH  LOST  DEED,  NOTE,  OK  OTHER  DOCU- 
MENT NOT  AN  OFFICE  PAPER. 


Georgia,    County. 

To  the  Superior  Court  of County : 

brings  his  petition  against , 

and  alleges  the  following  facts : 

1.  The  said ,  the  defendant  herein,  is  a 

resident  of  said  county. 

2.  Your  petitioner  is  the  owner  of  a  certain  bond   (check, 
warranty  deed,  promissory  note,  etc.,  as  the  .case  may  be),  now 

lost  or  destroyed,  of  which  said .the  defendant, 

was  the  maker.     A  substantial   (and  as  petitioner  believes,  a 
literal  copy  of  said  bond)    [or  other  document  as  before  speci- 
fied], as  near  as  petitioner  can  recollect,  is  hereto  attached,  duly 
sworn  to  and  made  a  part  of  this  petition. 

(a)      Said  bond  [check,  promissory  note,  etc.]  is  unpaid,  and 
the  same  is  lost  or  destroyed. 

3.  Petitioner  prays  that  the  clerk  of  this  court  issue  a  rule 
nisi  in  terms  of  the  law  calling  upon  the  said  defendant  to  show 

cause,  if  any  he  has,  why  the  copy aforesaid, 

should  not  be  established  in  lieu  of  said  lost  or  destroyed  original. 

This day  of ,19 

Attorney  for  Petitioner. 


For  petition  to  establish  lost  deed,  see  ante,  pp.  422,  423. 


[NOTE. — A  copy  of  the  instrument  sought  to  be  established  should  be 
attached  to  the  petition.] 


LOST  PAPERS  623 

OATH  TO  COPY. 


Georgia, County. 

Personally  before  me,  the  undersigned ,  an 

officer  authorized  to  administer  oaths  under  the  laws  of  this  State, 

came ,  who  on  oath  says  that  the  foregoing  is 

a  true,  and  correct  copy  in  substance,  as  near  as  he  can  recollect 
of  the  bond  [check,  deed,  promissory  note,  or  other  instrument 
as  the  case  may  be],  lost  or  destroyed. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,19 


(Official  designation.) 


RULE  NISI.    $5314. 


(State  the  case.) 

Motion  to  establish  copy  of in  the 

Superior  Court,    Term,  19.  ... 

To : 

A  petition  in  writing  having  been  presented  to  me  by 

,  in  which  he  alleges  that  a  certain  bond  [check. 

deed,  promissory  note,  or  other  instrument,  as  the  case  may  be,] 

made  and  executed  by  you  to  him,  dated  the day  of 

,  19 .  .  .  . ,  and  due  the day  of , 

19.  .  .  .,  annexing  to  his  said  petition  a  sworn  copy  thereof. 

You  are,  therefore,  called  upon  to  show  cause,  if  any  you 
have,  at  the  Superior  Court  to  be  held  in  and  for  said  county, 

on  the day  of ,  19.  . .  .,  why  said  copy 

sworn  to  as  aforesaid  should  not.  be  established 

in  lieu  of  said  lost  or  destroyed  original. 

Witness  the  honorable ,  judge  of  the  said 

court.     This day  of ,  19 .... 

...'. ,  Clerk. 


624  LOST  PAPERS 

RULE  ABSOLUTE.     §§5316,  5317. 


(State  the  case.) 

Motion  to  establish  copy  of  lost , 

Superior  Court, Term,  19 .... 

The  above  petition  coming  on  regularly  to  be  heard,  and  the 
rule  nisi  in  the  above  stated  case,  issued  in  terms  of  the  law, 
having  been  duly  served,  and  no  good  and  sufficient  cause  having 
been  shown  why  the  copy  sworn  to  and  attached  to  the  petition 
should  not  be  established,  in  lieu  of  the  lost  or  destroyed  original, 

It  is  ordered  that  the  said  copy attached  to 

said  petition  be,  and  the  same  is,  hereby  established  in  lieu  of 
said  lost  or  destroyed  original. 

Let  the  clerk  of  this  court  furnish  the  established  copy  to  the 
petitioner  with  a  certified  indorsement  thereon  and  the  date  and 
term  when  this  rule  absolute  was  granted;  provided,  that  all 
cost  of  this  proceeding  be  paid.  Let  this  order  absolute  be 
placed  on  the  minutes  of  the  court. 

This day  of ,  19 


Judge  Superior  Court. 


FINAL  ORDER. 


(State  the  case.) 

The  within  petition  coming  on  to  be  heard,  and  it  appearing 

that was  duly  served  with  notice  thereof  [or, 

that  the  said was  a  non-resident  of  this  State 

and  that  service  thereof  has  been  perfected  by  publication  of  the 

rule  nisi  for months  before  this  term  of  this  court  in 

the a  newspaper  in  which  the  official  advertise- 
ments of  the  sheriff  are  published  in  this  county] ,  and  the  said 

having  failed  to  show  any  sufficient  cause  why 

the  application  of should  not  be  granted :  it  is 

ordered  that  the  copy. set  forth  in  the  petition, 

be,  and  the  same  is,  hereby  established  in  lieu  of  the  lost  or 
destroyed  original. 

This day  of ,  19 


LOST  PAPER§  621 

DEED  LOST — PETITION  TO  ESTABLISH.     §4191. 
(See  ante,  pages  422,  423.) 


PROCEEDINGS  TO  ESTABLISH  COPY  OF  PRIVATE  PAPER  IN 
JUSTICE'S  COURT.    §5323. 


Georgia, County. 

To  the  Honorable ,  one  of  the  Justices  of  the 

Peace  for  the Militia  District  of  said  County: 

The  petition  of shows  that  he  is  the  owner 

of  a  certain  lost ,  which  one . ,  of 

said  county,  executed  and  delivered  to  your  petitioner  on  the 

day  of ,  19 .  . .  . ,  which  may,  according  to 

law,  as  petitioner  is  advised,  be  sued  on  and  collected  in  the 

justice  court,  and  which  said has  been  lost  or 

destroyed. 

(a)     A  copy  in  substance  of  the  lost  paper  is  hereto  attached 
and  marked  Exhibit  A. 

Wherefore,  petitioner  prays  a  rule  nisi  may  issue,  calling 

upon  said to  show  cause,  if  any  he  has,  why 

said  copy should  not  be  established  in  lieu  of  the 

lost  original. 


Petitioner. 


AFFIDAVIT  TO  PETITION. 


Georgia, County. 

Personally  before  me, ,  the  undersigned, 

aK  officer  of  said  State  duly  authorized  to  administer  oaths, 

came ,  who  upon  oath  says,  that  the  statements 

contained  in  the  foregoing  petition  are  true,  and  that  a  copy 

of attached  to  said  petition  is  a  true  copy,  in 

substance,  as  near  as  he  can  recollect,  of  the  said  paper,  now 
lost  or  destroyed,  of  which  he,  the  petitioner,  was  the  owner 
and . ,  .  .  the  maker. 


Petitioner. 
Sworn  to  and  subscribed  before  me,  this 

day  of ,   19.... 

,  J-   P. 


626  LOST  PAPERS 

EULE  NISI.    §5323. 


Georgia, County. 

In  the  Justice  Court  of  the District,  G.  M.,  of  said 

County. 
To of  said  County: 

having  presented  to  the  undersigned,  one 

of  the  justices  of  the  peace  of  the militia  district  of 

said  county,  a  sworn  copy  of  the  lost ,  whereof 

you  appear  to  be  the  maker,  for  the  purpose  of  establishing  the 
same,  a  copy  of  which  is  hereto  attached,  you  are  hereby  called 
upon  to  show  cause,  if  any  you  have,  before  the  justice  court 

for  said  district  at on next,  why  the 

aforesaid  copy  should  not  be  established  in  lieu  of  the  lost 
original. 

This day  of /19 

J-  P. 


RULE  ABSOLUTE. 


(State  the  case.) 

Proceedings  to  establish  copy  of in  the  justice 

court  of  the district,  G.  M.,  of  said  county. 

This  case  coming  on  to  be  heard,  the  same  being  a  petition  to 

establish  a  lost ,  and  it  appearing  that  a  rule 

nisi  has  been  served  as  required  by  law,  and  no  sufficient  cause 
being  shown  why  copy  set  forth  in  the  petition  of  the  said 

should  not  be  established  in  lieu  of  the  lost 

original.     It  is  hereby  ordered  and  adjudged  that  a  copy  of 

attached  to  said  petition,  be,  and  the  same  is, 

hereby  set  up  and  established  in  lieu  of  the  lost  original. 

This .day  of ,  19 

J.  P. 


CERTIFICATE  OF  JUSTICE  TO  COPY. 


Georgia, County. 

I  certify  that  the  foregoing  paper  was  this  day  established  in 
my  court,  as  a  true  copy  of  lost  original. 

'This day  of .  . '. ,  19 

,  J.  P. 


627 


LUNATICS. 
See  Insanity  and  Lunatics. 

MANDAMUS.     §§5440-5450. 


PETITION.    §5440. 


Georgia, County. 


vg  > Superior  Court, 

Term,  19 


To  the  Honorable,  the  Superior  Court  of  said  County : 

The  petition  of »  .respectfully  shows  as 

follows,  to  wit: 

1.  The  petitioner  is  an  incorporation  duly  incorporated  un- 
der the  laws  of  the  State  of  Georgia  with  its  principal  office  in 

the  city  of in  said  county,  and  is  engaged  in  the 

business  of 

2.  The which  is  hereby  named  as  defendant 

in  this  action,  is  a  corporation  organized  under  the  laws  of  the 

State  of ,  engaged  in  the  business  of 

within  the  State  of  Georgia,  and  having  an  office  and  agent  and 
conducting  business  in  the  said  county  of 

3.  4,  etc.     [Set  out  in  orderly  paragraphs  the  facts  out  of 
which  the  claim  to  have  a  mandamus  issue  arises.] 

Wherefore,  your  petitioner  names as  defendant 

hereto,  and  respectfully  prays: 

1.  That  this  court  will  issue  a  mandamus  nisi  directed  to 

the  said .',  requiring  it  to  show  cause  at  a  time 

and  place  to  be  designated  by  the  court  not  less  than  ten  days, 
nor  more  than  thirty  days  from  this  date  why  a  mandamus 
should  not  be  issued  against  it  requiring  it  to  [set  out  the  thing 
or  things  whicli  it  is  sought  to  have  the  respondent  do]. 

2.  That  on  the  hearing  the  mandamus  may  be  made  absolute 
and  the  defendant  be  required  to. .  .  [state  the  acts  relator  seeks 
to  have  respondent  perform]  .  .  . 

3.  That  process  may  issue  directed  to  the  said  defendant 
requiring  it  to  be  and  appear  at  the  time  and  place  designated 


628  MANDAMUS 

by  the  court  to  answer  this  complaint  and  abide  the  further 
order  of  the  court. 

This day  of ,  19 

Attorney  for  Petitioners. 


AFFIDAVIT  TO  PETITION. 


Georgia, County. 

In  person  before  the  undersigned, ,  an 

officer  authorized  to  administer  oaths,  came , 

.who  on v oath  says  that  he  is  [secretary  and  treasurer  of 

],  the  petitioner  named  in  the  foregoing  petition: 

that  he  has  read  said  petition  and  knows  the  contents  thereof; 
that  the  facts  therein  stated  so  far  as  concerns  the  acts  and 
deeds  of are  true. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


(Official  designation.) 


ORDER  OF  THE  COURT  THEREUPON. 


j.  Petition    for    Mandamus    in    the 
Superior  Court  of County. 


The  petition  of  the  plaintiff  in  the  above-entitled  cause  having 
been  read  and  considered,  the  same  is  hereby  sanctioned  and 
ordered  filed  and  defendant  served;  and  it  is  further  ordered 

that  the  defendant  named,  to  wit:  the .be  and 

appear  before  me  at  the  court  house  in  the  city  of , 

Georgia,  on  the day  of.- ,  19 .  .  .  . ,  at 

o'clock, M.,  or  so  soon  thereafter  as  can  be  heard,  then 

and  there  to  show  cause  why  a  mandamus  absolute  should  not 
be  issued  against  it  as  prayed  for  in  the  petition. 

Dated  and  signed  this day  of ,  19 .... 

,  J.  S.  C C. 

Filed  in  office  this.  .  .  .day  of , 

19.... 
,  Clerk. 


MANDAMUS  629 

PROCESS. 


Georgia, County. 

I 


vs.  r  Mandamus  in.  ... 
'      Superior  Court. 


To  the  Sheriff  of  said  County,  or  his  Deputy : 

The  defendant  is  hereby  required,, personally  or  by  attorney, 

to  be  and  appear  at  the  Superior  Court  to  be  held  in 

county,  on  the day  of ,  19 .  .  .  . ,  then  and 

there  to  answer  the  plaintiff's  complaint,  to  which  this  process 
is  annexed,  as  in  default  thereof  said  court  shall  proceed  as  to 
justice  shall  appertain. 

Witness  the  honorable ,  judge  of  the  said 

court,  this day  of ,  19 .... 

,  Deputy  Clerk. 


ENTRY  or  SERVICE. 


Georgia, County. 

Served  the  defendant,  the ,  a  corporation, 

by  serving  personally ,  the  superintendent, 

its  agent  in  charge  of  its  office  and  business  in  said  county. 

This day  of ,  19 

Sheriff. 


[NOTE. — The  plaintiff  may  demur  or  answer.    If  an  answer  is  filed  it 
may  begin  and  end  as  follows:] 


ANSWER. 

Georgia, County. 

Now  comes  the  respondent  in  the  above-stated  case,  and  makes 
answer  to  the  said  rule,  and  for  cause  why  mandamus  should 
not  issue  as  said  applicant  claims  is  its  clear  and  legal  right  to 
have  respondent  do,  says: 

1,  2,  etc.  (Each  paragraph  of  the  petition  should  be  answered 
as  in  ordinary  suits.) 


630  MANDAMUS 

3.     This  respondent  having  fully  set  out  in  this  answer  the 
facts,  it  now  prays  the  court  to  deny  a  mandamus  absolute. 


Attorney  for  Respondent. 


AFFIDAVIT  TO  ANSWER. 


Georgia, County. 

In  person  before  the  undersigned,  an  officer  authorized  to 

administer  oaths,  came ,  an  officer  of  the  said 

,  who  on  oath  says  that  he  knows  the  things 

.and  matters  set  up  in  the  foregoing  answer,  and  the  facts  set 
out  in  said  answer  are  true. 

Deponent  avers  that  he  has  authority  to  make  this  affidavit 
and  that  it  is  his  duty  to  inform  himself  of  the  matters  and 
things  set  out  in  the  above  answer. 

Deponent  is of  the  respondent. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


(Official  designation.) 


RULE  ABSOLUTE. 


*!*'*/  Mandamus  in Superior 

j       Court, Term,  19.... 


The  above-stated  case  coming  on  to  be  heard  at  this  term  of 
the  court  on  the  petition  of  the  plaintiff  for  mandamus  and  the 
ainendment  thereto  and  the  rule  issued  thereon  against  the 
defendant  to  show  cause  why  mandamus  absolute  should  not  be 
granted,  and  there  being  no  issue  of  fact : 

And  the  defendant  having  filed  its  demurrer  to  said  petition 
and  having  also  filed  its  answer  thereto: 

And  the  cause  having  been  argued  by  counsel  and  the  court 
being  fully  advised  in  the  premises,  it  is  thereupon  considered, 
ordered  and  adjudged  by  the  court  as  follows,  to  wit: 

1.  That  the  demurrer  of  the  defendant  to  the  petition  of  the 
plaintiff  be  and  the  same  is  hereby  overruled. 

2.  That  the  prayers  of  the  plaintiff's  petition  be  granted, 
and  that  a  mandamus  absolute  be  granted,  and  the  defendant  is 


MARRIAGE — MORTGAGES  631 

hereby  commanded  to  [insert  here  the  thing  required  of  the 
defendant  to  be  done]. 

3.  That  in  order  to  allow  the  defendant  to  file  a  bill  of 
exceptions  and  take  this  case  to  the  Supreme  Court,  this  order 
and  judgment  shall  not  become  of  effect  until  twenty  days  from 
and  after  this  date. 

In  open  court,  this day  of ,  19.  ... 

j.  s.  cV.  '.'.'d 


(NOTE:     Where  there  is  an  issue  of  fact,  such  issue  must  be  sub- 
mitted to  a  jury.) 


MARRIAGE.     §§2929-2943. 
(See  Husband  and  Wife,  ante,  pages  520,  522.) 


MORTGAGES.      §§3256-3305. 


MORTGAGE  WITH  WAIVER  OF  HOMESTEAD.     §§3256,  3257. 


Georgia, County. 

In  consideration  of  the  sum  of dollars, 

to paid,  as  well  for  the  better  securing  the 

payment  of  the  debt  hereinafter  mentioned of 

the  county  of hereby  sells  and  conveys  unto 

of  the  county  of and  his  assigns, 

the  following  described  realty,  to  wit :   

with  all  the  rights  and  appurtenances  to  said  property  belong- 
ing:    To  have  and  to  hold  said  property  to  said 

and  his  assigns  forever. 

And warrants  the  title  to  said  property 

against  the  lawful  claims  of  all  persons ;  but  this  conveyance  is 

made  for  the  following  purpose,  and  none  other : 

indebted  to  said in  the  sum  of 

dollars,  which  is  evidenced  by  a  certain  promissory  note  made 

by . to ,   or  his  order, 

the day  of ,  19.  .  .  .,  and  due  the 

day  of ,  19 .  .  .  . ,  for  the  sum  of 

dollars,  principal  debt,  with  interest  from at  the 

rate  of per  cent,  per  annum,  and  which  note  contains 


632  MORTGAGES 

a  provision  that  if  said  note  is  collected  by  suit  or  is  placed  in 
the  hands  of  an  attorney  for  collection,  that  the  maker  will  pay 
all  costs  of  collection,  including  ten  per  cent,  attorney's  fees  on 
said  principal  and  interest,  and  this  conveyance  is  made  to 
secure  the  payment  of  that  debt.  I  hereby  waive  and  renounce 
for  myself  and  family  any  and  all  homestead  and  exemption 
rights  that  I  may  have  under  the  Constitution  or  laws  of  this 
State,  as  against  the  debt  above  mentioned. 

Now,  if shall  pay  said  debt,  with  its 

interest,  when  it  shall  become  due,  then  this  deed  to  be  void ; 

but  if should  not  thus  pay  the  same,  then  this 

deed  to  be  of  force,  and  the  right  to  foreclose  the  same  for  said 
principal  debt  and  interest,  and  the  cost  and  expense  of  collec- 
tion, including  ten  per  cent,  attorney's  fees,  shall  exist. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed 

my  seal,  this day  of ,  19 .... 

[SEAL] 

[SEAL] 

Signed,  sealed  and  delivered  in  the  pres- 
ence of: 


(two  witnesses.) 


PROBATE  FOR  RECORD. 


Georgia, County. 

Personally  came  before  the  undersigned  attesting  officer,  who 

by  law  has  authority  to  administer  an  oath,   , 

the  subscriber,  who,  being  duly  sworn,  on  oath  says  that  he  was 

present  and  saw ,  the  maker,  sign,  seal  and 

deliver  the  within,  foregoing  and  attached  mortgage  for  the 
purposes  therein  set  out  at  the  time  therein  specified,  and  that 
by  request  of  said  maker,  affiant  signed  the  same  at  said  time 

as  a  witness,  and ,  the  other  witness  thereto, 

by  request  of  the  maker  signed  the  same  as  a  witness,  then  and 
there,  and  said  maker  signed  in  the  presence  of  said  witnesses 
and  the  witnesses  signed  in  the  presence  of  the  maker,  and  of 
each  other. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


(Official  designation.) 


MORTGAGES  633 

CLERK'S  ENTRY. 


Filed  for  record  this day  of ,  19.  .  .  ., 

at o'clock,  a.   m.     Recorded  in  book folio , 

on  the day  of ,  19.  ... 

Clerk  Superior  Court County. 


MORTGAGE — WITH  WAIVER  OF  HOMESTEAD  AND  POWER  OF 

SALE. 


Georgia, County. 

This  indenture,  made  the day  of . ,  19.  .  .  . , 

between ,  of  the  county  of , 

of  the  first  part,  and ,  of  the  county  of 

of  the  second  part, 

Witnesseth,  that  the  said  part.  .  of  the  first  part,  as  well  as 
for  the  better  securing  to  the  part.  .  of  the  second  part,  the 
fnithful  payment  of  the  debt  which  is  hereinafter  more  fully 
described  as  justly  due  to  the  part.  .  of  the  second  part,  in  man- 
ner hereafter  mentioned,  and  in  consideration  of  the  sum  of 
one  dollar  to  the  part.  .  of  the  first  part  in  hand  paid  by  the 
part .  .  of  the  second  part,  the  receipt  whereof  is  hereby  acknowl- 
edged, ha.  .  granted,  bargained,  sold,  aliened  and  confirmed, 
and  by  these  presents  do.  .  grant,  bargain,  sell,  alien  and  con- 
firm unto  the  said  part.  .  of  the  second  part,  and  to heirs 

and  assigns,  forever,  all , 

together  with  all  and  singular  the  edifices,  buildings,  rights, 
members,  hereditaments  and  appurtenances  to  the  same  belong- 
ing or  in  anywise  appertaining;  and  all  the  estate,  right,  title, 
interest,  property,  claim  and  demand  whatsoever  of  the  said 
part.  .  of  the  first  part  of,  in  or  to  the  same,  and  the  reversion 
and  reversions,  remainder  and  remainders  thereof.  To  have  and 
to  hold  the  said  premises  hereby  granted  and  released,  with  the 
rights,  members,  hereditaments  and  appurtenances  thereto  be- 
longing, and  every  part  and  parcel  thereof,  unto  the  said  part.  . 

of  the  second   part heirs  and   assigns to  the  only 

proper  use  and  behoof  of  the  said  part.  .  of  the  second  part, 
heirs  and  assigns  forever. 

And  for  the  consideration  aforesaid,  the  said 

for and  family  for  any  and  all  other  person  or  persons 

claiming  in  and  through do  hereby  solemnly  waive 


634  MORTGAGES 

and  renounce  in  favor  of  said  debt  evidenced  as  aforesaid  all 
right  of  homestead  or  exemption  in  and  to  any  and  all  the  prop- 
erty hereby  conveyed,  and  do  covenant  and  agree  not  to  take,  nor 
consent  to  the  taking  or  attempting  to  take  any  homestead  or 
exemption  not  allowed  by  law,  or  Avhich  may  hereafter  be 
allowed,  against  the  debt  aforesaid.- 

Upon  condition,  nevertheless,  that  if  the  said 

of  the  first  part, heirs,  executors,  administrators  or 

assigns,  shall  faithfully  pay  to  the  said  part.  .   of  the  second 

part,    executors,  administrators  or  assigns  a  certain 

promissory  note  bearing  date  the day  of , 

19 .  . .  . ,  payable  the day  of ,  19 .  . .  . ,  made 

and  executed  by  the  said ,  said  note  being 

for dollars,  principal,  and  bearing  eight  per 'cent. 

per  annum  interest  after  maturity,  according  to  the  tenor  and 
true  intent  and  meaning  of  said  note,  then  this  present  indenture, 
and  the  estate  hereby  granted,  and  every  article  and  clause  herein 

contained,  as  well  as  the  said 

shall  cease  and  become  utterly  void. 

And  it  is  hereby  mutually  covenanted  and  agreed  between  the 
parties  to  these  presents  that  if  default  shall  be  made  in  the 

payment  of  the  debt  agreed  to  be  paid  to  the  said 

at  any  time  or  times  on  which  the  same  shall  be  due,  or  any  part 
of  the  principal  or  interest  thereof,  that  then  and  thenceforth 

it  shall  be  lawful  for  the  part.  .  of  the  second  part, 

heirs,  executors,  administrators  or  assigns,  to  grant,  bargain, 
sell  and  dispose  of  the  said  hereby  granted  premises,  and  all 
benefit  and  equity  of  redemption  of  the  said  part .  .  of  the  first 
part,  or  assigns  therein,  at  public  sale,  during  the  legal  hours 

of  sale,  at  the  court  house  in county,  to  the  highest 

bidder  for  cash,  after  advertising  the  time  and  terms  of  sale  in 

the or  some  other  newspaper  published   in   said 

county,  once  a  week  for weeks,  and  to  execute  convey- 
ances to  the  purchasers,  as  fully  as  the  part.  .  of  the  first  part 
could  do,  rendering  the  overplus  of  the  purchase-moneys  to  be 
obtained  for  the  same,  if  any  overplus  there  shall  be,  after  full 
satisfaction  of  the  principal  and  interest  to  be  due  on  such 

in  manner  aforesaid,  and  after  payment  of  the 

charges  of  advertisement  and  sale,  and  the  cost  of  foreclosing  the 

same,  and  commissions  unto  the  said ,  part .  . 

of  the  first  part ;  or,  if  the  said  part .  .  of  the  second  part  elects, 
this  mortgage  may  be  foreclosed  by  suit,  in  the  ordinary  manner 
provided  by  law. 


MORTGAGES  635 

In  witness  whereof  the  said hereunto  set .... 

hand.  .  and  seal.  .  the  day  and  year  first  above  written. 

[SEAL.] 

[SEAL.] 

Signed,  sealed  and  delivered  in  presence  of: 

[SEAL.] 

, [SEAL.] 


PETITION  TO  FORECLOSE  MORTGAGE  ON  REALTY.     §3276. 


Georgia, County. 

To  the  Honorable  the  Superior  Court  of  said  County : 

The  petition  of. shows  that  on  the 

day  of ,  19.  . .  ., ,  of 

county,  made  and  executed  to  your  petitioner  his  certain  deed 
of  mortgage  of  that  date,  conveying  to  your  petitioner 

for  the  securing  the  payment  of  a  certain  promissory  note  for 

the  sum  of dollars,  due  the day  of , 

19....,  with  interest  after  maturity  at  the  rate  of  eight  per 

cent,  per  annum,  yet  your  petitioner  avers  that  the  said 

,  although  so  indebted,  and  to  pay  said  sum  of  money 

often  requested,  has  not  paid  the  same,  nor  any  part  thereof, 
but  wholly  refuses  to  pay  the  same :   Wherefore,  your  petitioner 

prays  the  order  of  this  court  requiring  the  said , 

to  pay  into  this  court  by  the  first  day  of  the  next  term  thereof, 

principal,  interest  and  costs  due  on  said and 

that  in  default  thereof  the  said  mortgage  be  foreclosed  and  the 
equity  of  redemption  therein  barred  in  terms  of  the  statute. 

Plaintiff's  Attorney. 
Term,  19 


RULE  NISI.    §3276. 


Georgia, County. 


In  the  Superior  Court 
V8'  Term,  19.. 


It  being  represented  to  the  court  by  the  petition  of 

that  by  deed  of  mortgage  dated  the day 

of ,  19 .  .  .  . , conveyed  to  the 


636  MORTGAGES 

said 

for  the  purpose  of  securing  the  payment  of  a  certain  promissory 

note  made  by  the  said to  the  said , 

due  on  the day  of ,  19 .  .  .  . ,  for  the  sum 

of dollars,  with  interest  after  maturity  at  the  rate 

of  eight  per  cent,  per  annum,  which is  now  due 

and  unpaid. 

It  is  ordered  that  the  said do  pay  into  this 

court  by  the  first  day  of  the  next  term  the  principal,  interest 

and  costs  due  on  said ,  or  show  cause,  if  any 

he  has,  to  the  contrary,  or  that  in  default  thereof  foreclosure  be 

granted  to  the  said of  said  mortgage,  and  the 

equity  of  redemption  of  the  said therein  be 

forever  barred,  and  that  service  of  this  rule  be  perfected  on  said 
according  to  law. 

Judge  Superior  Court. 


RULE  ABSOLUTE. 


Georgia, County. 


(In  the  Superior  Court, 
Term,  19.. 


Whereas,  at  the term,  19.  . .  .,  of  this  court,  a 

rule  nisi  was  granted  in  the  above  case,  requiring  the  defendant 
to  pay  to  the  plaintiff  the  principal,  interest  and  costs  due  on 

a  certain  promissory  note,  given  by on  the 

day  of ,  19 .  .  .  . ,  to  the  said , 

and  to  become  due  on  the day  of ,  19.  .  .  ., 

for  the  sum  of dollars  and cents,  to  secure 

the  full  and  lawful  payment  of  which  the  said 

had  executed  on  the day  of ,  19 .  .  .  . , 

to deed  of  mortgage,  conveying  to  said 

the  following  property,  to  wit : 


or  show  cause  to  the  contrary,  if  any ha.  .  .  why  said 

money  should  not  be  paid  as  aforesaid,  or  in  default  thereof,  that 
said  mortgage  be  foreclosed,  and  the  equity  of  redemption  therein 
forever  barred ;  and  whereas,  a  copy  of  said  rule  has  been  served 
upon  said  defendant,  according  to  law; 


MORTGAGES  637 

Now,  therefore,  it  appearing  to  the  court  that  the  said .... 

ha.  .  .  wholly  failed  and  refused  to  pay  said  money 

so  due  as  aforesaid,  as  required  by  said  rule  nisi,  and  ha.  . 
shown  no  cause  to  the  contrary:  It  is  ordered  and  adjudged  by 
the  court  that  the  equity  of  redemption  in  said  mortgaged  prem- 
ises be,  and  the  same  is,  hereby  forever  barred  and  foreclosed, 

and  that  the  said do  recover  of  the  said 

the  sum  of ' . . .  .  dollars  and 

cents  for  principal,  and  the  sum  of dollars  and 

cents,  interest  to  date  of  judgment,  and  interest  from 

this  date  on  principal  debt  at  the  rate  of  eight  per  cent,  per 
annum,  and  costs  of  suit,  and  that  execution  issue  against  the 
mortgaged  premises  for  the  sums  aforesaid. 

Judgment  signed  this day  of ,  19.  ... 

Judge  Superior  Court Circuit. 


SUPERIOR  COURT  MORTGAGE  Fi.  FA. 


Georgia, County. 

To  All  and  Singular  the  Sheriffs  of  said  State  and  their  Lawful 

Deputies — Greeting : 

We  command  you,  that  of  the  certain  goods  and  chattels, 
lands  and  tenements  of ,  to  wit : 

you  cause  to  be  made  the  sum  of dollars  and.  . .  . 

cents,  for  principal,  and dollars  and.  ....  .cents, 

as  interest,  up  to  the day  of ,  19.  . .  .,  and  also 

the  further  sum  of dollars  for  attorney's  fees,  and 

also  the  further  sum  of dollars  and cents 

for  costs,  with  interest  from  date  of  judgment  at  eight  per  cent. 

per  annum  on  the  principal  sum,  from  the day  of 

,  19 .  . .  . , recovered  against  the 

said ,  and  said  above  described  property,  by 

the  foreclosure  of  a  mortgage  thereon,  made  by  the  said 

to  the  said for  principal,  interest 

and  costs;  and  that  you  have  the  said  several  sums  of  money 

before  the  Superior  Court  for  said  county  on  the 

Monday  in next,  to  render  to  the  said 

for  principal,  interest  and  costs,  as  aforesaid ;  and  have  you  then 
and  there  this  writ. 


638  MORTGAGES 

Witness  the  honorable. ,  judge  of  said  court, 

this day  of ,  19.  ... 

,  Clerk. 


NOTE  AND  CHATTEL  MORTGAGE.     §3286. 

..,  19, 


after  date ....  promise  to  pay .  . 

or , dollars,  value  received,  with 

interest until  paid  at per  cent,  per  annum, 

with  all  costs  of  collection,  including per  cent,  attorney's 

fees  if  this  note  is  collected  by  suit  or  is  placed  in  the  hands  of 
an  attorney  for  collection.  Each  of  us,  whether  principal, 
security,  guarantor,  indorser,  or  other  party  hereto,  hereby  sev- 
erally waives  and  renounces,  each  for  himself  and  family,  any 
and  all  homestead  and  exemption  rights,  either  of  us,  or  the 
family  of  either  of  us,  may  have  under  or  by  virtue  of  the  Con- 
stitution or  the  laws  of  Georgia,  any  other  State  or  the  United 
States,  as  against  this  debt  or  any  renewal  thereof. 

Given  under  the  hand  and  seal  of  each  party. 

[L.  S.] 

[L.  S.] 

Witness : 


Georgia, County. 

Know  all  Men  by  these  Presents : 

That  I  stand  indebted  to ,  of  the  county 

of ,  and  State  of ,  in  and  by  my 

promissory  note,  bearing  even  date  herewith,  payable  to 

or  bearer,  in  the  sum  of dollars,  as  by 

reference  to  said  note  will  fully  appear;  and  for  and  in  con- 
sideration of  said  debt  and  for  the  better  securing  the  payment 
thereof,  and  for  the  further  sum  of  one  dollar  to  me  in  hand 

paid  by  said at  and  before  the  sealing  and 

delivery  of  these  presents,  I  have  granted,  bargained  and  sold, 
and  by  these  presents  do  grant,  bargain  and  sell  unto  said 

,  his  heirs  and  assigns,  the  following  property, 

to  wit :  . 


MORTGAGES  (539 

and  as  against  the  said  debt  for  myself  and  family  hereby,  for 
the  consideration  aforesaid,  I  waive  and  renounce  all  right  and 
benefit  of  and  to  any  present  or  future  exemption  and  home- 
stead under  the  present  or  future  homestead  and  exemption  laws 
of  the  State  of  Georgia,  or  of  the  United  States,  and  the  Con- 
stitution thereof,  in  said  property. 

And  further,  for  said  consideration  upon  default  of  payment 
of  said  debt  according  to  the  terms  thereof,  then  I  authorize  and 

empower  said to  foreclose  this  mortgage  in 

the  usual  form,  or  to  sell  said  property  from  time  to  time,  or  so 
much  thereof  as  may  be  necessary  to  pay  said  debt  and  all  ex- 
penses of  sale,  at  public  outcry,  for  cash,  on  any  lawful  sale  day 
for  sheriff's  sales  at  the  time  and  place  of  sheriff's  sales  of  like 
property  under  mortgage  executions  from  the  Superior  Courts 
of  said  State,  first  giving  notice  of  such  sale  and  the  time,  terms 
and  place  thereof,  in  the  public  gazette  in  which  sheriff's  sales 
for  the  county  where  such  sale  is  to  be  made  are  advertised,  and 
as  often  and  for  such  period  of  time  as  is  required  for  such 
sheriff's  sales,  and  from  the  proceeds  of  such  sale  or  sales  to 
pay  said  debt,  with  interest  due  thereon  and  expenses  of  said 

sale  or  sales  and  account  to  said for  the 

surplus,  if  any. 

And  I  further  authorize  and  empower  the  said 

upon  said  sale  or  sales  to  receipt  for  the  proceeds  thereof  and 
execute  to  the  purchaser  a  conveyance  thereof  in  fee  simple  in 
my  name,  and  T  hereby  constitute  and  appoint  him  irrevocably 
my  attorney  in  fact,  to  do  and  perform  as  heretofore  mentioned, 
for  the  consideration  aforesaid,  to  have  and  to  hold  said  property 

unto  the  said his  heirs  and  assigns,  to  his  and 

their  own  use,  benefit  and  behoof  forever. 

Provided,  always,  that  if  I,  my  heirs  or  representatives,  shall 
pay  up  and  discharge  said  debt  according  to  the  terms  thereof, 
then  this  mortgage  and  said  power  of  attorney,  together  with 
said  debt,  shall  be  void  and  of  no  effect. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal, 

this  the day  of ,  19 .... 

' [L.  S.] 

Signed,  sealed  and  delivered  in  presence  of: 


640  MORTGAGES 

AFFIDAVIT  TO  FORECLOSE  CHATTEL  MORTGAGE.     §3286. 


Georgia, County. 

Before  me, ,  the  undersigned,  an  officer  of 

this  State  authorized  to  administer  oaths,  personally  came.  .  .  . 

,  who,  having  been  sworn,  on  oath  says  that  he  is  the 

holder  of  a  mortgage  to  which  this  affidavit  is  attached;  that 

the  maker  of  said  mortgage,  is  a  resident  of 

county,  and  is  indebted  to  deponent  on  said 

mortgage  in  the  sum  of dollars,  principal,   

dollars  interest  to  date,  and .dollars  attorney's  fees 

(as 'stipulated  in  the  said  mortgage),  and  that  the  amount  of 
said  several  sums  is  now  due,  and  he  makes  this  affidavit  for  the 
purpose  of  foreclosing  said  mortgage. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19.... 


(Official  designation.) 


MORTGAGE  EXECUTION  ON  PERSONALTY.     §3286. 


Georgia, County. 

To  All  and  Singular  the  Sheriffs  or  their  Lawful  Deputies  of 
this  State: 

You  are  commanded  that  of  the  personal  property  of 

to  wit :    

you  make  by  levy  and  sale  the  sum  of dollars 

and cents,  principal,  and  the  further  sum  of 

dollars  and cents,  as  interest  up  to  the day 

of ,  19.  .  .  .,  with  interest  on  the  principal  sum 

thereafter  at  the  rate  of per  cent,  per ,  and 

attorney's  fee,  which  by  the  affidavit  of 

appears  to  be  due  to on  a  mortgage  on  said 

property  made  by  said on  the day 

of ,  19 .  .  .  . ,  to ,  which  said 

mortgage,  with  said  affidavit  annexed,  is  of  file  in  this  office. 

You  will  also  make  the  sum  of. dollars  and 

cents  costs  of  this  foreclosure,  and  all  the  further  cost  that 
accrues.  And  have  you  the  said  several  sums  of  money  before 
the  Superior  Court  for  said  county  on  the Monday 


MORTGAGES  641 

in next,  to  render  to  the  said 

for  principal,  interest  and  costs  aforesaid,  and  have  you  then 
and  there  this  writ.  - 

Witness  the  honorable ,  judge  of  said  court, 

this day  of ,  19.  . .  . 

,  Clerk,  S.  C. 


JUSTICE  COURT  FORECLOSURE  MORTGAGE  Fi.  FA. 


Georgia,  ............  County. 

........................  Mortgagee. 

........................  Mortgagor. 

Personally  appeared  before  me,  ...............  ,  a  justice 

of  the  peace  in  and  for  said  county,  the  affiant,  whose  name  is 
hereto  subscribed,  who  on  oath  says  that  he  is  ..............  , 

the  mortgagee  aforesaid,  and  that  the  mortgagor  aforesaid  is 
indebted  to  said  mortgagee  on  the  annexed  mortgage  in  the  sum 
of  .............  dollars,  principal,  and  .............  dollars, 

interest  to  date,  which  amounts  are  now  due,  and  that  said 
mortgagor  resides  in  said  county,  and  he  makes  this  affidavit 
for  the  purpose  of  foreclosing  this  mortgage. 

.............................  ,  Affiant. 

Sworn  to  and  subscribed  before  me,  this 
......  day  of  ...............  ,  19  ____ 


Georgia,  ............  County. 

To  All  and  Singular  the  Constables  of  said  State  : 

You  are  hereby  commanded,  that  of  certain  personal  property 
of  the  mortgagor,  named  in  the  foregoing  affidavit,  which  affida- 
vit is  hereby  referred  to  and  made  a  part  of  this  writ,  to  wit: 

you  cause  to  be  made  the  sum  of  ..........  dollars,  principal, 

............  dollars,  interest  to  date,  and  all  future  interest  at 

the  rate  of  .........  per  cent,  per  annum,  and  all  costs,  which 

sums  the  aforesaid  mortgagee  lately  before  me  recovered  of  the 
aforesaid  mortgagor  on  the  foreclosure  of  a  mortgage  given  by 
the  aforesaid  mortgagor  to  the  aforesaid  mortgagee,  said  mort- 
gage dated  .................  ,  19  .... 

And  have  you  said  sums  of  money  at  the  justice's  court  of  the 
.........  district,  G.  M.,  said  State  and  county,  to  which  court 

this  fi.  fa.  is  made  returnable,  said  court  to  be  held  on  the  ..... 

.........  ,  19.  .  .  .,  to  render  to  said  mortgagee  his  principal, 


642  MORTGAGES 

interest  and  costs  .aforesaid ;  and  have  you  then  and  there  this 
writ. 

Given  under  my  hand  and  official  signature,  this day 

of ,  19.... 

Justice  of  the  Peace District,  G.  M. 


ASSIGNMENT  OF  MORTGAGE. 


Georgia, County. 

For  value  received  I  hereby  transfer  and  assign  to 

the  within  mortgage  and  the  debt  which  it  was  made  to  secure, 
together  with  all  the  rights,  interests  and  privileges  belonging 
to  me  under  and  by  virtue  thereof. 

This day  of.... ,  19 

[SEAL,.] 


ILLEGALITY  TO  CHATTEL  MORTGAGE  Fi.  FA.     §§3289,  3300. 


vs. 


Georgia, County. 

Chattel   mortgage   fi.    fa.    issued   from 

Superior  Court county,  on 

the day  of ,  19.  .  . 

$ principal,    $ interest. 

$ attorney's  fees. 

$ costs. 

Before  me,   ,  of  said  county,  an  officer  of 

said  State  authorized  by  law  to  administer  oaths,  personally 

appeared ,  who  %on  oath  says  that  the  above 

described  fi.  fa.,  heretofore  levied  upon  property  of  deponent, 
is  proceeding  illegally,  for  the  following  reasons,  to  wit: 

*Deponent  is  not  indebted  to  plaintiff  in  any  amount,  and 
the  mortgage  foreclosed  is  utterly  void  and  without  considera- 
tion for  that:  [allege  specific  defense.] 

Sworn  to  and  subscribed  before  me,  this 

day  of ,   19 

...  .  . 

Notary  Public County,  Ga. 

*[NOTE. — The  defendant  may  avail  himself  of  any  defense  that  he 
could  have  set  up  in  an  ordinary  suit  upon  the  demand  secured  by  the 
mortgage,  and  show  that  he  is  not  justly  indebted  to  the  plaintiff  in 
the  sum  claimed  in  the  affidavit  of  foreclosure.  §3289.] 


MORTGAGES  643 

REPLEVY  BOND  OF  DEFENDANT  IN  MORTGAGE  Fi.  FA.     §3301. 


Georgia, County. 

Know  all  men  by  these  presents,  that  we, , 

principal,   and ,  security,   acknowledge      our- 
selves jointly  and  severally  .bound  unto ,  the 

plaintiff,  in  the  sum  of dollars,  subject  to  the 

following  conditions : 

Whereas,  the  said has  foreclosed  a  mortgage 

on  personalty  against ; . ,  and  has  caused  execution 

to  issue  on  the day  of ,  19 .  .  .  . ,  from 

the court  of  said  county,  which  said  execution 

issued  for  the  sum  of dollars,  principal, 

dollars,  interest,    dollars,  attorney's  fees,  and 

dollars,  costs,  and  was  on  the day  of 

,  19 . . . . ,  levied  by ,  of  said 

county,  on  the  following  personal  property,  to  wit .  .  .  [describe 
the  property]  ...  as  the  property  of  the  said  defendant. 

Now,  if  said ,  principal,  shall  return  the 

said  described  property,  so  levied  on,  when  called  for  by  the 

levying  officer,  or  if  the  said shall  do  so  for 

him,  then  this  obligation  to  be  void,  else  of  full  force  and  effect. 

Witness  our  hands  and  seals,  this day  of , 

19 

Principal   [L.  S.] 

Security     jl*  S.] 

Executed  in  the  presence  of  and  approved 

by  me: 
,J.P. 


PAUPER  AFFIDAVIT.    §3301. 


Georgia, County. 

}  Illegality  to  chattel  mortgage  fi.  fa. 
issued  from  Superior  Court, 
County,  on  the 
day  of ,  19 

Before  me,   ,  of  said  county,  an  officer  of 

said  State  duly  authorized  by  law  to  administer  oaths,  personally 

appeared ,  who  on  oath  says  that  he,  defendant 

in  the  above  named  and  stated  case,  is  unable  from  poverty  to 
give  the  bond  and  security  required  by  law  in  above  stated  case, 


644  MORTGAGES 

and  that  he  has  been  advised  and  believes  that  his  grounds  of 
illegality  will  be  sustained. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


Notary  Public, County,  Ga. 


AFFIDAVIT  BY  CREDITOR  CONTESTING  MORTGAGE.     §3304. 


Georgia County. 

~\  Chattel  mortgage  fi.  fa.  issued  from 

vs.  Superior  Court County, 

3       on  the. .  .  .day  of ,  19.  ... 

Before  me,  ...  * ,  of  said  county,  an  officer  of 

said  State  duly  authorized  by  law  to  administer  oaths,  personally 

appeared ,  who  on  oath  says  that  he  is  a 

creditor  of  the  mortgagor,  who  is  the  defendant  in  the  above- 
described  mortgage  fi.  fa.,  the  said  defendant  being  indebted  to 

deponent  in  the  sum  of." dollars,  principal,  and 

dollars,  interest  to  date,  upon  an  open  account  for 

merchandise.  A  true  and  correct  copy  of  said  account  is  hereto 
attached  marked  "Exhibit  A."  [Attach  -copy  to  this  affidavit 
accordingly.] 

Deponent  makes  this  affidavit  for  the  purpose  of  contesting 
the  validity  and  fairness  of  said  mortgage. 

The  grounds  upon  which  deponent  relies  to  defeat  said  mort- 
gage are  as  follows : 

Said  mortgagor  is  not,  and  was  not  at  the  time  said  mortgage 
was  made,  indebted  to  the  mortgagee  in  any  sum  whatever. 

Said  mortgage  does  not  represent  any  bona  fide  indebtedness 
upon  the  part  of  the  mortgagor  to  the  mortgagee,  but  was  made 
solely  with  intent  to  hinder,  delay,  and  defraud  creditors,  the 
said  mortgagee  being  the  wife  of  the  mortgagor,  and  having 
taken  said  mortgage  with  notice  that  it  was  made  with  the 
intent  aforesaid. 


Sworn  to  and  subscribed  before  me,  this 
.. day  of ,   19 

Notary  Public County,  Ga. 


MORTGAGES  645 

BOND.    §3304. 


Georgia, County. 

Know  all  men  by  these  presents,  that  we, , 

principal,  and ,  security,  acknowledge  our- 
selves jointly  and  severally  bound  unto ,  of 

county,  to  the  extent  hereinafter  stated,  and 

subject  to  the  following  conditions : 

Whereas,  the  said has  foreclosed  a  mortgage 

on  personalty  against ,  and  has  caused  execu- 
tion to  issue  on  the day  of ,  19.  . .  .,  from 

the court  of  said  county,  which  said  execution 

was  on  the ....  day  of ,  19 .  . .  . ,  by , 

sheriff  of  said  county,  levied  upon  the  following  personal  prop- 
erty, to  wit: [describe  the  property]  .... 

And  whereas,  the  said has  this  day  filed 

with  said  levying  officer  his  affidavit  contesting  the  validity  and 
fairness  of  said  mortgage. 

Now,  should  the  said ,  principal,  pay  to  the 

said all  costs  and  damages  incurred  by  the 

delay  occasioned  by  said  contest  in  case  the  issue  be  found 
against  the  contestant,  then  this  bond  to  be  void,  else  of  full  force. 

,  Principal  [L.  S.] 

,  Security  [L.  S.] 

Executed  in  the  presence  of  and  approved 

by  , : 

Sheriff, County,  Ga. 


ADVERTISEMENT  OF  SALE  UNDER  POWER  OF  SALE  CONTAINED 

IN  MORTGAGE. 


Georgia, County. 

Under  and  by  virtue  of  a  power  of  sale  contained  in  the 

mortgage   executed   by to on 

the day  of. ,  19 .  .  .  . ,  and  recorded  in  the 

office  of  the  clerk  of  the  Superior  Court  of count  v, 

in  book ,  in  folio ,  the  undersigned  will  sell,  at 

public  sale,  at  the  court  house  in  said  county,  during  the  legal 
hours  of  sale,  to  the  highest  bidder  for  cash,  the  following  prop- 
erty, to  wit.  .  .  [describe  the  property  as  described  in  the  mort- 
gage]... for  the  purpose  of  paying  a  certain  promissory  note 
bearing  date  the. .  .  .day  of ,  19.  . .  .,  and  payable 


646  MORTGAGES 

on  the day  of ,  19 .  .  .  . ,  and  made  and 

executed  by  the  said ,  said  note  being  for 

dollars,  principal,  stipulating  for  interest  from 

maturity  at  the  rate  of  eight  per  cent,  per  annum,  the  total 

amount  due  on  said  note  being dollars,  principal, 

and dollars,  interest,  together  with  the  costs  of 

this  proceeding  as  provided  in  such  mortgage.  A  conveyance 
will  be  executed  to  the  purchaser  by  the  undersigned,  as  author- 
ized in  the  said  mortgage.  This day  of ,  19 .... 

Mortgagee. 


EQUITABLE  FORECLOSURE  UPON  REALTY.     §3305. 


(NOTE:  The  advantage  of  foreclosing  a  mortgage  in  equity  is  that  a 
general  judgment  may  be  had  at  the  same  time,  and  also  there  is  less 
trouble  in  reference  to  attorney's  fees,  and  service  upon  defendant  does 
not  have  to  be  so  long.) 


PETITION. 

Georgia, County. 

To  the  Superior  Court  of  said  County: 

The  petition  of ,  as  plaintiff,  against 

• ,  as  defendant,  shows  the  following  facts : 

1st.     That  defendant  is  a  resident  of  said  county. 

2nd.     That  on  the day  of ,  19 ,  the 

defendant  made  and  executed  to  plaintiff  a  certain  promissory 

note  for  the  sum  of dollars,  with  interest  thereon 

from  said  date  at per  cent,  per  annum,  containing  a  pro- 
vision for  the  payment  of per  cent,  attorney's  fees  on  said 

principal  and  interest,  in  the  event  said  note  was  collected  by 
suit  or  placed  in  the  hands  of  an  attorney  for  collection,  and 

said  note  to  become  due  on day  of ,  19 .  .  .  . , 

a  copy  of  which  said  note  is  hereto  attached  and. marked  "Ex- 
hibit A." 

3rd.  That  of  even  date  with  the  execution  of  said  note 
defendant  made  and  executed  to  plaintiff  a  certain  mortgage  to 
secure  the  payment  of  same  upon  the  following  described  prop- 
erty, to  wit: 

Lot  of  land,  No ,  in  the district  and 

section  of  said  county,  containing acres,  more 


MORTGAGES  647 

• 

or  less,  and  which  said  mortgage  recited  the  provisions  herein- 
before set  out  in  said  note,  a  copy  of  which  said  mortgage  is 
hereto  attached  and  marked  "Exhibit  B." 

4th.  That  defendant  has  failed  and  refused  to  pay  said  note, 

;m<l  that  on  the day  of ,  10.  .  .  .,  more  than 

ten  days  before  the  return  day  of  this  court,  plaintiff  served 
defendant  personally  with  notice  in  writing  of  his  intention  to 

bring  suit  on  said  note  to  the term,  19.  .  .  .,  of  the 

superior  court  of  said  county,  which  court  sits  on  the 

Monday  of ,  and  that  unless  the  defendant  paid 

said  note  on  or  before  the  return  day  of  said  court,* which  was 

on  the day  of ,  19 . . . . ,  that  in  case  of  such 

failure,  plaintiff  would  claim  the  attorney's  fees  expressed  in 
said  note,  a  copy  of  which  said  notice  is  hereto  attached  and 
marked  "Exhibit  C."  Plaintiff  files  this  his  equitable  petition 
for  the  foreclosure  of  said  mortgage  and  prays  as  follows: 

1st.  That  he  have  a  general  judgment  against  the  defendant 
for  the  principal,  interest,  costs  and  attorney's  fees  due  on 
said  note. 

2nd.  That  his  mortgage  be  foreclosed  and  his  mortgage  lien 
be  set  up  against  said  mortgaged  property  and  that  the  equity 
of  redemption  therein  be  forever  barred. 

3rd.  That  process  issue  requiring  the  defendant  to  be  and 
appear  at  the  next  term  of  the  superior  court  of  said  county,  to 
answer  your  petitioner's  complaint. 

Attorney  for  Plaintiff. 


AFFIDAVIT. 


Georgia, County. 

Personally    came    before   the    undersigned    attesting   officer, 

,  the  subscriber,  who,  being  duly  sworn,  on 

oath  says  that  he  is  the  plaintiff  in  the  above  and  foregoing 
petition,  and  that  the  facts  and  things  therein  set  out  are  true 
to  the  best  of  his  knowledge  and  belief. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


Clerk  Superior  Court. 


648  MORTGAGES  • 

VERDICT  OF  THE  JURY. 


We,  the  jury,  find  for  the  plaintiff  against  the  defendant, 

the  sum  of dollars  for  principal  debt,  and 

.....  .dollars  for  interest  up  to  judgment,  with  interest  on  the 

principal  debt  from  this  date,  and dollars,  attor- 
neys fees,  and  costs  of  suit.  And  we  further  find  that  the  said 
mortgage  be  foreclosed  and  that  the  equity  of  redemption  therein 
be  forever  barred,  and  plaintiff's  mortgage  lien  therein  be  set 
up  against^  the  property  described  in  said  mortgage,  for  said 
amounts  of  principal,  interest,  attorney's  fees  and  costs,  with 
the  lien  thereon  from  the  date  of  said  mortgage. 

This day  of ,  19 

Foreman. 


DECREE. 

: ^  Equitable  foreclosure  of  mortgage 

vs.  in Court,    

.  )       Term,  19 

In  the  above  named  and  stated  case,  the  jury  having  found 
a  verdict  therein,  and  in  conformity  thereto,  it  is  considered, 

ordered  and  adjudged  that  the  plaintiff, ,  do 

recover  of  the  defendant, ,  the  sum  of 

dollars,  principal  debt,  and dollars, 

interest  to  judgment,  with  interest  on  the  principal  sum  from 

this  date  at per  cent,  per  annum,  and  the  sum  of 

dollar's  for  attorney's  fees,  and dollars, 

costs  of  suit.  Also,  further,  that  the  mortgage  set  out  in  plain- 
tiff's petition  be  foreclosed  and  that  the  equity  of  redemption 
therein  be  forever  barred,  and  that  the  plaintiff  specially  do 

recover  of  defendant,   ,  said  amounts  out  of 

and  against  the  property  described  in  said  mortgage,  to  wit 
(here  describe  the  property),  with  a  mortgage  lien  thereon  from 
the day  of ,  19 .  . .  . ,  the  date  of  said  mort- 
gage, and  that  said  property  be  sold  by  the  sheriff  to  satisfy  this 
judgment  of  foreclosure  and  costs  of  suit.  Let  execution  issue 
generally  and  specially  as  herein  provided.  Judgment  signed 
and  entered  this day  of ,  19.  ... 

Judge  Superior  Court. 


MORTGAGES  649 

Affidavit.  Allegation  in  affidavit  for  foreclosure  before  maturity  of 
debt,  that  the  "defendants"  are  about  to  remove  the  mortgaged 
property  beyond  the  limits  of  the  county,  is  not  a  compliance  with 
Code,  §3287,  where  affidavit  does  not  show  that  defendants  are 
purchasers  of  the  mortgaged  property.  15  App.  359  (1)  (83  S.  E. 
273).  Affidavit  to  foreclose  mortgage  under  Code,  §3287,  stating 
that  the  mortgagor  has  "placed  himself  in  some  one  of  the  positions 
where  process  of  attachment  could  legally  issue  against  him,"  is 
amendable.  18  App.  423  (89  S.  E1,  540). 

Alteration.  Affixing  of  name  of  attesting  witness  to  chattel  mortgage 
after  delivery  and  without  consent  of  mortgagor  is  not  such  a 
material  alteration  as  will  invalidate  the  mortgage.  13  App.  1  (1) 
(78  S.  E.  770). 

Amendment.  Plaintiff  was  properly  allowed  to  amend  fi.  fa.  by  making 
a  credit  thereon  on  trial  of  issue  made  by  affidavit  of  illegality. 
18  App.  300  (2)  (89  S.  E.  373). 

Attestation.  Stockholder  of  mortgagee  corporation,  though  incom- 
petent to  take  acknowledgment  of  mortgage  as  notary,  is  not  in- 
competent as  a  non-official  witness  to  signature  of  mortgagor. 
143/11  (3)  (84  S.  E.  59).  Mortgage  attested  by  notary  public  who 
is  secretary  and  treasurer  of  corporation  to  which  it  is  given  is 
not  properly  executed.  16  App.  309  (1)  (85  S.  E.  267).  Attesta- 
tion by  attorney  for  party  is  good.  8  App.  91  (4)  (68  S.  E.  651). 
Mortgage  without  any  witness  is  valid  as  between  the  parties 
thereto.  126/305  (4)  (55  S.  E.  62). 

Copy.  Petition  was  not  sufficient  here,  no  copy  of  note  secured  by 
mortgage  being  attached,  and  it  not  appearing  when  note  was  due, 
nor  what  interest,  if  any,  it  should  bear,  nor  from  what  date 
interest  should  be  computed.  145/776  (89  S.  E'.  829).  Where 
chattel  mortgage  is  foreclosed  by  attaching  to  affidavit  of  fore- 
closure a  copy  of  the  mortgage,  such  copy  must  be  verified  as 
correct  by  an  affidavit  thereon  of  the  owner  or  his  agent  or  attor- 
ney; not  sufficiently  verified  by  certificate  signed  by  attorney  for 
mortgagee  and  by  attesting  officer  which  recites  merely:  "I  hereby 
certify  on  oath  that  the  above  is  a  true  and  correct  copy  of  the 
original  mortgage  which  is  now  in  my  possession."  14  App.  30  (1) 
(79  S.  E.  930)'.  See  16  App.  653  (85  S.  E.  931). 

Date.    Mortgage  purporting  to  have  been  signed  on  the day  of 

1912,  and  which  appears  to  have  been  properly 

witnessed,  and  which  was  duly  recorded  on  August  7,  1912,  cover- 
ing certain  crops,  was  not  so  defective  as  to  date  as  to  be  too 
indefinite  to  constitute  a  lien  on  the  property  as  to  third  persons. 
Mortgage  was  at  least  good  from  the  time  of  its  record.  17  App. 
98  (1)  (86  S.  E.  255). 

Description  of  property  as  "all  my  shop  tools  and  fixtures  ...  in 
my  possession"  is  not  void  for  indefiniteness.  13  App.  1  (2)  (78 
S.  E.  770).  Description  of  property  as  crops  cff  all  kinds  growing 
and  to  be  grown  on  plantation  of  C.  known  as  C.'s  place,  including 
cotton,  cottonseed,  etc.,  was  not  sufficient.  13  App.  787  (79  S.  E. 
1134).  Mortgage  reciting  that  it  is  given  to  secure  payment  of  note 
for  specified  amount,  ani  "such  future  advances  in  money,  stock, 
merchandise  and  plantation  supplies"  as  may  be  made  to  mortgagor 
by  mortgagee  during  given  year,  is  valid  only  as  mortgage  to  secure 
payment  of  the  note.  13  App.  632  (4)  (79  S.  E.  755).  Description 
of  crop  as  on  "Mrs.  Johnson's  farm"  was  not  sufficient:  18  App.  487 
(89  S.  E.  607).  Property  described  as  "12  acres  of  cotton"  was  in- 


650  MUNICIPAL  CORPORATIONS 

sufficient.  124/3  (52  S.  E.  19).  Law  does  not  require  mortgage  to 
describe  property  so  as  to  identify  it  without  aid  of  parol  evidence. 
9  App.  56  (70  S.  E.  259) ;  120/879  (48  S.  E.  328). 

Fi.  fa.  Entry  of  levy  on  fi.  fa.  was  not  void  for  omitting  to  recite  land 
levied  on  as  property  of  defendant.  133/825  (67  S.  E'.  97). 

Form.  The  Code  does  not  require  that  any  particular  form  of  ex- 
pression shall  be  used  to  create  a  mortgage.  14  App.  30,  33  (79  S. 
E.  930).  Criterion  by  which  a  deed  or  bill  of  sale  to  secure  deed  is 
distinguished  from  a  mortgage  is  that  one  passes  title  and  another 
does  not;  and  this  is  determined  by  the  apparent  intention  of  the 
parties  as  evidenced  by  the  writings  connected  with  the  trans- 
action. Instrument  containing  common  defeasance  clause,  pro- 
viding that  if  described  debt  should  be  paid  at  maturity  "then  this 
deed  or  bill  of  sale  be  void,"  was  in  legal  effect  a  mortgage.  17 
App.  666  (87  S.  E1.  1100). 

Illegality.  Affidavit  of  illegality  is  amendable  to  same  extent  as  are 
ordinary  pleas.  13  App.  632  (1)  (79  S.  E.  755).  Affidavit  setting 
up  payment  may  be  amended  by  amplifying  that  ground.  9  App. 
550  (71  S.  E.  917). 

Jurisdiction.  Foreclosure  proceedings  are  not  void  merely  because  they 
fail  to  show  jurisdiction  of  the  court  over  the  person  of  defendant. 
14  App.  180  (5)  (80  S.  E.  663). 

Nature  of  instrument.  Covenant  and  agreement  that  property  de- 
scribed in  paper  should  be  held  by  maker  "in  trust"  for  its  pay- 
ment is  sufficient  to  create  a  mortgage  lien,  though  instrument  was 
in  form  of  promissory  note  for  purchase-price  of  fertilizer.  14 
App.  30,  33  (79  S.  E.  930). 

Process.  Issuance  of  process  by  clerk  as  in  ordinary  suits,  not  neces- 
sary; rule  nisi  is  process.  123/14  (50  S.  E.  963). 

Seal  not  necessary  to  validity  of  mortgage.  126/306  (55  S.  E.  62).  At- 
testation of  domestic  notary  not  required  to  be  under  seal,  to  pre- 
pare instrument  for  record.  88/417  (14  S.  E.  608). 


MUNICIPAL  CORPORATIONS. 
§§855  (a)-913  (a). 


DEMAND  ON  MUNICIPAL  CORPORATION  BEFORE  BRINGING 

SUIT. 


To  the  Mayor  and  Council  of  the  City  of : 

You  are  hereby  notified  that  on  the day  of , 

19 .  . .  . ,  at  the  intersection  of .  .  , and 

streets  in  said  city,  petitioner  being  a  foot  passenger  along.  .  . 

street,  in  the  night  time,  fell  into  a  hole  or 

excavation  in  said  street.  The  said  hole  was  dangerous  in  char- 
acter, unlighted,  and  without  barrier  to  warn  or  protect  foot 
passengers  along  said  street;  petitioner  did  not  know  of  the 
existence  of  the  said  hole,  and  was  without  fault  in  the  transac- 


NEW  TRIAL  651 

tion.     The  said  hole  had  been  there days  before 

petitioner  fell  into  it,  and  the  city  of knew  of  its 

existence,  and  was  charged  with  the  knowledge  thereof,  and 
were  negligent  in  failing  to  put  up  lights  there,  or  other  warn- 
ing or  barriers  to  protect  plaintiff  therefrom.  Petitioner  sus- 
tained serious  injuries  in  falling  into  said  hole,  to  wit:  his  arm 
was  broken  so  that  it  had  to  be  amputated  at  the  elbow,  he 
suffered  and  still  suffers  great  pain  and  mental  anguish  there- 
from, he  is  permanently  disfigured  and  injured  in  his  person, 
and  his  capacity  to  labor  and  earn  money  permanently  impaired 

to  the  extent  of  at  least  one-half,  that  he  was years 

of  age  when  injured,  and  was  earning  and  capable  of  earning 

the  sum  of dollars  per  annum,  that  he  was  confined 

to  his  bed  for  the  space  of months  by  reason  of  such 

injuries,  and  incurred  expense  for  medicines  and  medical  atten- 
tion and  nursing  of dollars,  all  to  his  injury  and 

damage  in  the  sum  of dollars,  and  for  said  amount 

he  makes  claim  upon  the  city  of of 

dollars  for  adjustment  thereof  according  to  the  provisions  of 
law. 


NEW  TRIAL.    §§6078-6097. 


MOTION.     §6089. 


vs. 


Complaint  in Superior  Court 

Term,  19 

Verdict  for  plaintiff  on  the .... 

day  of ,   19 ,  for 

$ and  costs  of  suit. 

Now  comes  the  defendant  in  the  above  named  and  stated 

case,  on  this  the day  of ,  19 ,  during 

the  term  of  court  at  which  said  verdict  was  rendered,  and  within 
thirty  days  from  the  time  of  said  trial,  and  being  dissatisfied 
with  the  verdict  and  judgment  rendered  against  him,  makes 
this  his  motion  for  a  new  trial  therein,  and  moves  the  court  to 
set  aside  said  verdict  and  grant  a  new  trial  in  said  case  upon 
the  following  grounds,  to  wit: 


652  NEW  TRIAL 

1.  Because  said  verdict  is  contrary  to  evidence  and  without 
evidence  to  support  it. 

2.  Because  the  verdict  is  decidedly  and  strongly  against  the 
weight  of  evidence. 

3.  Because  said  verdict  is  contrary  to  law  and  the  principles 
of  justice  and  equity. 

Movant  prays  the  court  to  grant  a  rule  nisi  calling  upon  the 
plaintiff  to  show  cause,  if  any  he  has  or  can,  why  this  motion 
should  not  be  granted  and  a  new  trial  awarded  therein  as  prayed. 

Attorney  for  Movant. 


RUT>E  NISI  TO  SHOW  CAUSE. 


vs. 


Coniplaint  in Superior  Court 

Term,  19 

Verdict  for  plaintiff  on  the.  .  .  . 

day  of ,   19.  .  .  .,  for 

$ and  costs  of  suit. 

The  above  and  foregoing  motion  having  been  presented,  it  is 

ordered  that  the  plaintiff,  ,  be  served,  and 

show  cause  before  me  in  this  court  instanter,  or  so  soon  as 
counsel  can  be  hea"rd,  why  the  said  motion  should  not  be  granted, 
and  a  new  trial  had  therein  as  prayed. 

This day  of ,19 

/-  ••••••••• 

Judge  Superior  Court. 

Due  and  legal  service  is  hereby  acknowledged  on  the  within 
and  foregoing  order  and  motion,  copy  and  all  other  and  further 
service  and  notice  is  hereby  waived. 

This day  of ,  19 


Attorney  for  Respondent, 


(NOTE:  While  the  point  has  never  been  decided  in  Georgia,  the  safe 
plan  is  to  present  the  judge  with  the  motion,  take  the  above  order  nisi, 
and  serve  respondent's  counsel,  or  get  the  acknowledgment  of  service 
of  the  respondent's  counsel  upon  it  as  above  set  out.  In  that  way,  the 
respondent  is  in  court  and  can  be  heard  upon,  and  will  be  bound  by, 
any  other  or  further  order  in  the  case.  There  may  be  a  question  as  to 
a  judge  passing  an  order  before  the  other  party  is  served,  extending 
time  in  the  perfecting  of  the  motion.  Then  if  time  is  desired,  take  the 
following  order  after  respondent  has  been  served,  as  above  set  out.) 


NEW  TRIAL  653 

ORDER  GIVING  TIME  FOR  THE  PERFECTING  OF  MOTION. 


Movant 


vs. 


Motion  for  a  new  trial  in, 


Superior  Court, 


Term.  19. 
Respondent 

In  the  above  named  and  stated  case,  the  movant  having  made 
a  motion  for  a  new  trial  therein,  and  the  stenographer  not  having 
had  time  to  write  out  the  evidence  so  that  the  movant  can  file 
his  brief  of  evidence,  it  is  considered,  ordered  and  adjudged 
that  said  motion  be,  and  the  same  is,  hereby  continued  until 

the day  of ,  19.  .  .  .,  at. .  .  .o'clock,  A.  M., 

at  the  court  house,  to  be  heard  by  me  in  vacation  then  and  there, 

and  that  the  movant,  ,  have  until  said  time 

to  make  out  and  present  to  the  court  a  brief  of  evidence  in  said 
case,  and  to  amend  said  motion,  and  such  right  shall  be  extended 
and  continued  to  the  time  of  the  hearing,  if  for  any  reason  said 
motion  is  not  heard  at  said  time,  with  the  right  to  movant  to 
file  said  brief  upon  the  hearing  or  whenever  said  brief  is  ap- 
proved. 

It  is  further  ordered  that  a  supersedeas  be  granted  and  allowed 
in  said  case  until  the  final  disposition  of  this  motion. 

This day  of .'.  .,  19 

Judge  of  Superior  Court. 


AMENDED  MOTION. 


Movant 

vs. 


Motion  for  a  new  trial  in 

'Superior  Court,    Term, 

19.  .  .  .,  and  set  for  a  hearing 

before  the  Honorable , 

Judge   of   the   Superior   Court, 
this day  of ,  19.  ... 

Now  comes  the  movant  in  the  above  named  and  stated  e;is'- 

on  this  the day  of ,  19 ,  the  time  and 

date  set  for  the  hearing  thereof,  and  by  leave  of  the  court  first 
had,  amends  his  motion  heretofore  filed,  by  adding  thereto  the 
following  grounds: 


654  NEW  TRIAL 

1st.  Because  upon  the  trial  of  said  case  the  court  erred  in 
the  following  point  and  particular :  What  happened  is  as  fol- 
lows: (Here  set  out  plainly,  fully  and  distinctly  what  the 
specific  thing  is  that  is  complained  of.  State  facts  and  not 
conclusions.  Any  number  of  grounds  can  be  added  to  meet  the 
different  grounds  of  alleged  error.) 

2nd.  Because  upon  the  trial  of  said  case  the  court  charged 
the  jury  as  follows:  (Here  set  out  the  portion  of  the  charge 
complained  of  which  should  be  a  correct  and  fair  statement  of 
the  charge  alleged  to  be  error),  which  said  charge  movant  insists 
was  error,  for  the  following  reasons :  (Here  set  out  the  reasons). 

Movant  prays  that  these  grounds  of  motion  for  new  trial  be 
considered  by  the  court,  and  that  a  new  trial  be  granted  upon 
each  and  all  of  the  same. 

Attorney  for  Movant. 

At 

.  19.. 


The  above  and  foregoing  amended  motion  is  hereby  allowed, 
and  it  is  ordered  that  the  same  be  filed. 


Judge  Superior  Court. 


ADDITIO'NAL  GROUNDS  OF  MOTION. 


(NOTE:  The  grounds  of  a  motion  may  be  stated  in  any  desirable  and 
proper  manner,  the  rule  being  that  they  should  be  plainly,  fully  and 
distinctly  set  forth.  The  following  forms  may  be  used:) 

3.  Because  the   following  material   evidence  was   illegally 
admitted  to  the  jury  by  the  court  over  the  objection  of  movant, 
to  wit:     [set  out  the  evidence  claimed  to  have  been  illegally 
admitted.] 

Movant  objected  to  the  admission  of  such  evidence  at  the  time 
the.  same  was  offered  and  did  then  and  there  urge  the  following 
grounds  of  objection  thereto :  [set  out  the  objections  that  were 
actually  made  and  urged  at  the  trial.] 

Which  objections  the  court  then  and  there  overruled. 

4.  Because,  during  the  progress  of  the  trial  movant  moved 
the  court  to  rule  out  the  following  material  evidence  introduced 
by  the  adverse  party:    [set  out  specifically  what  the  evidence 


NEW  TRIAL  655 

was,  in  the  ground  itself,  without  reference  to  the  brief  of 
evidence  or  any  other  parts  of  the  record],  and  then  and  there 
did  urge  the  following  groimds  of  objection  to  the  said  evidence : 
[set  out  what  objections  were  actually  made  and  urged  at  the 
trial],  which  said  objections  the  court  then  and  there  overruled 
and  allowed  the  evidence  to  remain  before  the  jury. 

5.  Because    the    following    material    evidence    offered    by 
movant  was  illegally  withheld  from  the  jury  against  the  demand 
of  the  movant,  to  wit :    [set  out  specifically  the  evidence  claimed 
to  have  been  illegally  withheld]. 

6.  Because  the  court  refused  to  allow  the  witness 

while  on  the  stand,  to  answer  the  following  questions  propounded 
to  him  by  movant,  to  wit:    [set  out  what  the  questions  were], 
movant  insisting  that  the  witness  if  permitted  to  answer  would 
answer  as  follows:    [set  out  the  answers  expected],  and  that  the 
judge  was  then  and  there  informed  as  to  what  the  answer  of  the 
witness  would  be  if  he  had  allowed  him  to  answer  at  all. 

7.  Because  the  court  erred  in  charging  the  jury  as  follows, 
to  wit:    [set  out  the  language  used  by  the  court  claimed  to  con- 
stitute error,  particularly  pointing  out  in  \vhat  the  error  con- 
sisted]. 

8.  Because  the  court  erred  in  refusing  to  give  in  charge  the 
following  request  to  charge,  the  same  having  been  submitted  in 
writing  before  the  jury  retired  to  consider  of  their  verdict,  to 
wit:    [set  out  copy  of  the  request  to  charge]. 

The  part  of  the  charge  requested  should  embrace  but  one 
subject-matter  and  the  entire  contents  of  the  request  upon  the 
point  in  question  should  be  all  correct  and  applicable  to  the 
facts.  If  part  is  sound  law  and  part  bad,  the  whole  may  be 
refused. 

9.  Because,  since  the  rendition  of  said  verdict  certain  ma- 
terial  evidence,   not  merely  cumulative  or   impeaching  in   its 
character,  but  relating  to  new  and  material  facts,  has  been  dis- 
covered by  the  movant,   said   evidence  being  in  substance   as 
follows,  to  wit. :  [set  out  the  evidence  claimed  to  be  newly  dis- 
covered] . 

10.  Because,  during  the  progress  of  the  trial  the  trial  judge 
erred  in  this  that  he  did  intimate  or  express  an  opinion  to  the 
jury  as  to  what  had   (or  had  not,  as  the  case  may  be,)  been 
proved,  as  follows,  to  wit : 


656  NEW  TRIAL 

11.  Because,  during  the  progress  of  the  trial  the  presiding 
judge  erred  in  that  he  did  intimate  or  express  to  the  jury  his 
opinion  as  to  what  had  [or  "had  not,"  as  the  case  may  be,]  been 
proved  in  the  following  portion  of  his  charge  to  the  jury,  to  wit: 
[set  out  the  extracts  from  the  charge  claimed  to  be  erroneous, 
pointing  out  what  was  intimated  or  expressed  therein,  as  claimed 
by  movant]. 

Whereupon,  movant  prays  that  these,  his  grounds  for  new 
trial,  be  inquired  of  by  the  court,  and  that  a  new  trial  be  granted 
him.  This day  of ,19 

Attorney  for  Movant. 


APPROVAL  OF  MOTION  FOR  NEW  TRIAL. 


The  recital  of  the  facts  contained  in  the  foregoing  motion  for 
new  trial,  and  amendments  thereto,  are  hereby  approved  as  true 
and  correct.  This day  of ,  19 .... 

Judge  Superior  Court. 


ACKNOWLEDGMENT  OF  SERVICE.     §6080. 


Service  of  the  within  motion  for  new  trial  and  rule  nisi  there- 
upon acknowledged  and  copy  and  all  other  or  further  service  or 
notice  waived.  This day  of '.  .  .,  19.  ... 

<•«.«• 

Attorney  for 


ORDER  ENLARGING   TIME   FOR  SUBMITTING  AMENDMENTS, 
FILING  BRIEF,  FIXING  TIME  OF  HEARING,  ETC. 


vg  '  '  Verdict  and  judgment  for 

Term    19 of Court. 


The having  a  motion  for  a  new  trial  in  said 

case,  on  the  grounds  therein  stated,  and  said  grounds  having 
been  approved  by  the  court,  and  it  appearing  that  it  is  impossi- 
ble to  make  out  and  complete  a  brief  of  the  testimony  in  said 


NEW  TRIAL  657 

case  before  adjournment  of  court:  It  is  ordered  by  the  court 

that  said  motion  be  heard  and  determined  on  the day 

of ,  19 .  .  .  . ,  in  vacation  at ,  and 

that  movant  may  amend  said  motion  at  any  time  at  or  before 
the  final  hearing. 

If  for  any  reason  said  motion  is  not  heard  and  determined 
at  the  time  and  place  above  fixed,  it  is  ordered  that  the  same 
shall  be  heard  and  determined  at  such  time  and  place  in  vacation 
as  counsel  may  agree  upon,  under  approval  of  the  court,  and 
upon  failure  to  agree,  then  at  such  time  and  place  as  the  pre- 
siding judge  may  fix  on  the  application  of  either  party,  of  which 
time  and  place  the  opposite  party  shall  have  at  least  five  days' 
notice. 

If  for  any  reason  this  motion  is  not  heard  and  determined 
before  the  beginning  of  the  next  term  of  this  court,  then  the 
same  shall  stand  on  the  docket  until  heard  and  determined  at 
said  term  or  thereafter. 

It  is  further  ordered  that  the  movant  have  until  the  hearing, 
whenever  it  may  be,  to  prepare  and  present  for  approval  and 
filing  a  brief  of  the  evidence  in  said  case,  and  the  presiding 
judge  may  enter  his  approval  thereon  at  any  time,  either  in 
term  or  vacation,  and  if  the  hearing  of  the  motion  shall  be  in 
vacation,  and  the  brief  of  evidence  has  not  been  filed  in  the 
clerk's  office  before  the  date  of  the  hearing,  said  brief  of  evidence 
may  be  filed  in  the  clerk's  office  at  any  time  within  ten  days  after 
the  motion  is  heard  and  determined. 

This day  of :...,  19 

Judge  Superior  Court. 


APPROVAL,  OF  BRIEF  OF  EVIDENCE. 


(State  the  ease.) 

The  foregoing pag68?  constituting  the  brief  of  the 

evidence  in  this  case,  is  hereby  approved  as  a  true  and  correct 
brief  of  the  evidence  adduced  upon  the  trial  of  the  above-stated 
case.  Let  the  same  1x3  filed  as  part  of  the  record  herein. 

This day  of ,  19.  ... 

J.  S.  bV.  ..C. 


658  NEW  TRIAL 

AGREEMENT  OF  COUNSEL  AS  TO  BRIEF  OF  EVIDENCE. 


We  agree  that  the  foregoing pages  is  a  true  and 

correct  brief  of  the  evidence  adduced  in  the.  trial  of  the  case 
of. vs therein  referred  to. 

This day  of ,  19 


Counsel  for. 


Counsel  for, 
Approved  and  ordered  filed  as  part  of  the 

record. 
,   Judge. 


ORDER  REFUSING  MOTION  FOR  NEW  TRIAL. 


This  motion  for  new  trial  coming  on  regularly  to  be  heard, 
after  argument  had,  it  is  considered,  ordered  and  adjudged  that 
a  new  trial  be,  and  the  same  is,  hereby  refused  [or  "granted," 
as  the  case  may  be],  and  judgment  is  hereby  rendered  in  favor 

of against ,  for  the  use  of 

the  officers  of  the  court  for dollars  and cents, 

costs  of  this  motion. 

This day  of ,  19 

J.S.C..  ..C. 


NEWLY  DISCOVERED  EVIDENCE.     §6086. 


AFFIDAVIT. 

(State  the  case.) 
Georgia, County. 

Personally  appeared ,  the  applicant  for   a 

new  trial  in  the  above  stated  case,  and and 

,  his  counsel,  and  being  all  of  his  counsel, 

each  of  whom  on  oath  says  that  he  did  not  know  of  the  evidence 

set  out  in  the ground  of  the  motion  for  a  new  trial 

herewith  filed  before  the  trial  of  the  case  therein  stated,  and 


NONSUIT — NOTARIES  PUBLIC  659 

that  the  same  could  not  have  been  discovered  by  the  exercise  of 
ordinary  diligence. 


Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


(Official  designation.) 


(NOTE:  If  the  newly  discovered  evidence  is  the  testimony  of  a 
witness,  there  should  also  be  attached  to  the  motion  an  affidavit  by 
persons  who  know  the  witness,  stating  that  they  know  him,  where  he 
resides,  that  he  is  of  good  character,  and  that  his  evidence  is  entitled 
to  credit.) 


Amendment  of  motion  for  new  trial  may  be  allowed  at  any  time  before 
final  disposition  of  motion.  122/250  (50  S.  E.  105). 

Evidence.  Ground  of  amendment  to  motion,  "that  the  court  erred  in 
allowing  the  introduction  of  the  mortgage  fi.  fa.,  over  objection  of 

defendant's  counsel,  the  objection  being  that  it  does  not " 

can  not  be  considered,  the  objection  not  being  set  out.  16  App.  813 
(3)  (86  S.  E.  455).  See  125/577  (54  S.  E.  677).  Motion  should 
set  forth  enough  to  enable  court  to  decide  question  without  refer- 
ring to  other  parts  of  record.  121/437  (49  S.  E.  292).  Evidence 
must  be  literally  or  in  substance  set  forth  in  motion  or  attached 
thereto  as  an  exhibit.  136/664  (1)  (71  S.  E.  1117).  Documentary 
evidence  must  be  set  out  in  motion  or  attached  as  an  exhibit.  12 
App.  494  (77  S.  E.  672),  756  (78  S.  E.  475). 

Instructions.  Grounds  of  motion  complaining  that  certain  excerpts 
from  charge  of  court  are  not  adjusted  to  the  evidence  or  to  the 
contentions  of  the  parties,  without  specifying  wherein  they  are  not 
so  adjusted,  was  not  sufficiently  specific  to  be  considered.  16  App. 
350  (2)  (85  S.  E.  361). 

Verification  of  grounds  of  motion.  121/162  (48  S.  E.  904).  Treated  as 
not  verified,  when.  125/577  (54  S.  E.  677). 


NONSUIT. 

See  Abatement  of  Actions,  ante. 


NOTARIES  PUBLIC. 
(COMMERCIAL,  §§616-625.)      (COMMISSIONED,  §§4649-4679.) 


PETITION  FOR  APPOINTMENT. 


Georgia, County. 

To  the  Honorable ,  Judge  of  the  Superior 

Court  of  said  County: 
Par.  1.     The  petition  of respectfully  shows, 


660  NOTARIES  PUBLIC 

that  he  is  a  citizen  of  said  county,  and  that  he  has  attained  to 
the  age  of  twenty-one  years  (or  is  an  attorney  at  law). 

Par.  2.  Petitioner  shows  that  he  desires  to  be  appointed  a 
commercial  notary  public  for  said  county,  under  the  provisions 
of  law. 

Par.  3.  The  petitioner  herewith  submits  a  certificate  of  his 
good  moral  character. 

Par.  4.  Wherefore,  he  prays  the  granting  of  an  order  ap- 
pointing him  such  notary  public  and  directing  the  clerk  of  the 
Superior  Court  of  said  county  to  issue  to  him  a  certificate  of 
his  appointment,  upon  his  taking  and  subscribing  the  oath  pre- 
scribed by  law.  And  your  petitioner  will  ever  pray. 

,  Petitioner. 


Georgia, County. 

To  the  Hon ,  Judge  of  the  Superior  Court 

of  said  County: 
We,  the  undersigned,  citizens  of  said  county,  certify  unto 

your  Honor  that  we  know  personally ,  the 

applicant  in  the  foregoing  petition,  that  he  is  of  good  moral 
character,  and  qualified  under  the  laws  for  the  position  of 
Notary  Public. 

This day  of ,  19 

[L.  S.] 

[L.  S.] 


JUDGE'S  APPOINTMENT. 


At  Chambers,    ,  19 .... 

Read  and  considered,  and  it  appearing  that , 

the  applicant,  is  twenty-one  years  of  age  (or  is  an  attorney  at 
law),  and  is  of  good  moral  character,  it  is  hereby  ordered  that 

said be,  and  he  is  hereby,  appointed  notary 

public  as  prayed  for,  for  the  term  of  four  years  next  following, 

and  the  clerk  of  the  superior  court  of  said  county  of 

will  issue  a  certificate  of  appointment  to  the  applicant  upon  his 
taking  and  subscribing  the  oath  prescribed  by  law. 

Judge  of  Superior  Court. 


NOTARIES  PUBLIC  661 

OATH  BEFORE  CLERK. 


I,   ,  do  solemnly  swear  (or  affirm)   that  I 

will  well  and  truly  perform  the  duties  of  notary  public  for  the 

county  of to  the  best  of  my  ability;  and  I  further 

swear  (or  affirm)  that  I  am  not  the  holder  of  any  public  money 
belonging  to  the  State  unaccounted  for;  so  help  me  Godi 

[L.  S.] 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


Clerk  of  Superior  Court  of  said  County. 


COMMISSION. 

Georgia, County. 

Clerk's  Office  of  Superior  Court  of  said  County. 

having  taken  and  subscribed  before  me  the 

oath  prescribed  by  law  for  notary  public,  by  virtue  of  the  order 

of  the  Hon ,  judge  of  the  Superior  Court  of 

said  county,  he  is  hereby  commissioned  a  notary  public  for  said 
county,  under  the  laws  made  and  provided  for  such  purposes, 
for  a  term  of  four  years  from  this  date,  unless  his  appointment 
should  be  sooner  revoked. 

Witness  my  official  signature  and  seal  of  office,  this 

day  of ,  19 

Clerk  of  Superior  Court  of  said  County. 


CERTIFICATE  OF  CLERK  AS  TO  OFFICIAL  CHARACTER  OF 
NOTARY. 


Georgia, County. 

I, ,  clerk  of  the  Superior  Court  in  and  for 

said  county,  the  same  being  a  court  of  record,  and  being  the 
court  under  which  the  notary  hereinafter  named  holds  his  ap- 
pointment, do  hereby  certify  that ,  by  and 

before  whom  the  foregoing  acknowledgment  was  taken  was,  at 
the  time  of  taking  the  same,  a  notary  public  in  and  for  the 


662  NOTARIES  PUBLIC 

county  of ,  regularly  commissioned  and  authorized 

by  law  to  attest  deeds  and  take  acknowledgments. 

Witness  my  hand  and  official  seal,  this.  .  .  .day  of '.  .  . , 

19.... 

,  Clerk. 


NOTARY  PUBLIC  AND  EX-OFFICIO  JUSTICE  OF  THE  PEACE. 


Georgia, County. 

In  the  Superior  Court  of  said  County. 

Term,  19 

The  grand  jury  at  this  term  of  the  court  having  so  recom- 
mended, it  is  ordered  that be,  and  he  is  hereby, 

appointed  notary  public  and  ex-officio  justice  of  the  peace  in 

and  for  the district,  G.  1VL,  of  said  county,  to  fill 

vacancy  caused  by 

Ordered  further,  that  the  clerk  of  this  court  enter  this  order 
on  the  minutes,  and  transmit  a  certified  copy  thereof  to  the 
governor  that  a  commission  may  issue  as  provided  by  law. 

This day  of ,  19 

Judge  Superior  Court Circuit. 

Georgia, County. 

I  certify  that  the  foregoing  is  a  true  extract  from  the  minutes 
of  the  Superior  Court  of  said  county. 

Witness  my  hand  and  seal  of  office,  this day 

of ,19 

,  Clerk. 


OATH  OF  THE  JUSTICE  OF  THE  PEACE  AND  NOTARIES  PUBLIC. 

§4663. 


"I  do  swear  that  I  will  administer  justice  without  respect  to 
persons,  and  do  equal  rights  to  the  poor  and  the  rich,  and  that 
I  will  faithfully  discharge  all  the  duties  incumbent  on  me  as  a 

justice  of  the  peace  for  the  county  of agreeably 

to  the  Constitution  and  laws  of  this  State,  and  according  to  the 
best  of  my  ability  and  understanding.     So  help  me  God." 


(NOTE:     Besides  the  above  oath,  the  oath  required  of  all  civil  officers 
must  be  taken.     See  §2G9.) 


NOTICE  TO  PRODUCE  PAPERS  663 

Attorney  at  law,  being  notary  public,  can  not  qualify  party  to  affidavit 
for  attachment  and  take  bond  and  issue  attachment  in  case  in 
which  he  is  employed.  37/678.  See  Code,  §§621  (4),  4955. 

Disqualification.  Notary  public  is  not  disqualified  from  administering 
an  oath  to  his  father  and  attesting  an  affidavit  made  by  the  latter. 
145/93,  94  (2)  (88  S.  E.  680).  Notary  may  attest  deed  to  secure 
loan,  where  he  represents  the  lender  in  the  negotiations.  122/440 
(50  S.  E'.  382). 

Presumption  as  to  place  of  attestation  of  instrument  rebutted  by 
officer's  signature.  145/531,  533  (89  S.  E.  512). 


NOTICE  TO  PRODUCE  PAPERS,  ETC. 

§§5837-5843,  6304. 


FORM  OF  NOTICE.. 


Georgia, County. 

. .  Court. 


Term,  19.... 


To 

Or ,  Attorney  for : 

You  are  hereby  notified  to  produce  and  have  upon  the  trial 

of  the  above  stated  cause,  at  the term,  19.  .  .  ., 

of court,  and  from  term  to  term  thereafter  until 

the  same  is  finally  disposed  of,  the  documentary  evidence  men- 
tioned in  the  subjoined,  memorandum  marked  "Exhibit  A,"  the 
.same  to  be  used  as  evidence  pertinent  to  the  cause  in  question, 
for  the This day  of ,  19 


Counsel  for, 
EXHIBIT  A. 


664  NOTICE  TO  PRODUCE  PAPERS 

ACKNOWLEDGMENT  OF  SERVICE. 


Due  and  legal   service  of  the  within  notice   acknowledged. 
Copy  and  all  further  or  other  service  waived. 
This day  of ,  19 

Attorney  for 


[NOTE. — Notice  shall  be  in  writing,  signed  by  the  party  seeking  the 
production  of  the  document  or  writings,  or  by  his  attorney;  when  re- 
turnable to  the  Superior  Court  ten  days,  and  when  returnable  to  the 
justice  court  five  days,  before  the  production  of  the  document  or  other 
books,  shall  be  required.  §5838.  Before  the  notice  shall  be  available, 
the  party  giving  it,  or  his  agent,  must  make  oath,  or  his  attorney  state 
in  his  place,  that  he  has  reason  to  believe  that  the  paper  required  is  or 
has  been  in  existence;  that  it  is  in  the  possession,  power,  or  control  of 
the  person  notified;  and  that  it  is  material  to  the  issue.  §5842.] 


EXCULPATORY  AFFIDAVIT.     §6304. 


(State  the  case.) 
Georgia, County. 

Personally  before  me,  the  undersigned  attesting  officer,  came 

,  who,  being  duly  sworn,  on  oath  says  that 

the  notice  to  produce  certain  books  or  papers  [describe  same  as 

contained  in  the  notice]  was  served  upon  him  on  the 

day  of ,  19.  .  .  .  ;  that  affiant  was  at  that  time  not 

a  resident  of county,  but  was  a  resident  of 

county  in  said  State   [or  temporarily  absent  from  the 

county  of  his  residence]  at  the  time  said  notice  was  served;  that 
the  said  books  or  papers  [describe  same]  are  not  now  nor  have 
been  in  the  possession,  power  or  control  of  affiant  since  the 
service  of  such  notice. 

Sworn  to  and  subscribed  before  me,  this 
day  of r...,   19 


(Official  designation.) 


[NOTE. — When  the  party  notified  resides  in  the  county  wherein  the 
case  is  pending,  he  may  make  the  affidavit  in  open  court,  and  it  shall  be 
held  as  sufficient  compliance  with  the  notice.  §6304.] 


ORDINARY  665 

AFFIDAVIT  OF  PARTY  TO  RENDER  NOTICE  AVAILABLE.     §5842. 


(State  the  case.) 
Georgia, County. 

Personally  before  me,  -the  undersigned,  a  judicial  officer  of 

said  State, ,  the in  the 

above-stated  case,  who,  being  duly  sworn,  on  oath  says  that  he 
has  reason  to  believe  the  paper  required  is  or  has  been  in  ex- 
istence; that  it  is  in  the  possession,  power  or  control  of 

the  person  notified  to  produce  it,  and  that  it"  is 

material  to  the  issue. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


(Official  designation.) 


[NOTE. — The   above  oath  may  be  made  by   the   agent  of  the   party 
giving  it,  or  his  attorney  may  make  statement  in  his  place.    §5842.] 


Defective  notice.     Notice  is  not  so  because  it  does  not  specifically  call 

for  the   production  of  the   paper  from   "term   to  term."     121/250 

(1-b)   (48  S.  E.  970). 
Description.     Technical   description   is  not  necessary   to  have   papers 

produced;  and  very  general  description  is  effectual  to  compel  their 

production.     22/559,  562. 
Peremptory  order  must  be  given  by  court  to  produce  books  or  papers 

specified  before  there  can  be  a  failure  or  refusal  to  "comply  with 

such  order,"  as  provided  by  Code,  §5839.     114/622   (40  S.  E.  796); 

3  App.  34,  38   (59  S.  E.  209). 
Subpoena  duces  tecum,  sufficiency  of,   is  not  material  question   after 

document  has  been  produced  thereunder.     129/143  (58  S.  E.  1055). 


ORDINARY.     §§4776-4827. 


CERTIFICATE  OF  ORDINARY  TO  COPY. 


Georgia, County. 

In  the  Court  of  Ordinary. 

I, ,  ordinary  of  said  county,  and  ex-oflicin 

clerk  of  the  court  of  ordinary,  certify  that  the  attached   ;m<l 
foregoing pages   of  printing  and   writing  contain   a 


666  ORDINARY 

full,  true  and  complete  copy  of as  the  same 

appears  of  record  and  file  in  this  office. 

AVitness  my  hand  and  the  seal  of  said  court  at , 

Ga.,  this day  of ,  19.  ... 


Ordinary  and  ex-officio  Clerk. 


ORDINARY'S  CERTIFICATE  TO  TRANSCRIPT  OF  RECORD. 


Georgia, County.  Ordinary's  Office : — ss. 

I, ,  ordinary  and  ex-officio  clerk  of  the 

court  of  ordinary  of  said  county,  do  hereby  certify  that  I  have 

compared  the  foregoing  copy  of 

with  the  original  record  thereof,  now  remaining  in  this  office, 
and  the  same  is  a  correct  transcript  therefrom,  and  of  the  whole 
of  such  original  record. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and 

affixed  the  seal  of  the  court  of  ordinary,  this  the day 

of ,  19 

Ordinary  and  ex-officio  C.  C.  O. 


SUBPCENA    FOR    WITNESS. 


Georgia, County. 


vs. 


To ,  . . .  . ,  Greeting : 

You  are  hereby  commanded,  that  laying  all  other  business 
aside,  you  personally  be  and  appear  at  the  court  of  ordinary  of 

said  county on day  of . .  . .' next, 

to  testify  and  the  truth  to  say  on  the  part  and  in  behalf  of 
the ,  in  the  above  named  and  stated  case. 

Herein  fail  not,  on  pain  of  three  hundred  dollars. 

Witness  the  honorable ,  judge  of  said  court, 

this day  of ,  19 .... 

.  Clerk. 


ORDINARY  667 

FEES  OF  ORDINARY.     §4827. 


The  ordinaries  are  entitled  to  the  following  fees,  to  wit : 

For  receiving  application  and  granting  citation $  1  25 

For  taking  and  recording  administrators'  or  guardians' 

bonds 1  00 

For  issuing  letters  of  administration,  or  letters  testamen- 
tary   1  50 

For  recording  the  same 50 

For  copying  the  same 50 

For  signing  warrant  of  appraisement 50 

For  receiving  appraisement  or  sale  bill,  and  approving 

the  same,  if  under  five  hundred  dollars 1  00 

If  above  five  hundred  and  under  two  thousand  dollars  1  25 
If  above  two  thousand  and  under  ten  thousand  dollars  1  50 
If  above  ten  thousand  and  under  twenty  thousand 

dollars ' 1  75 

If  above  twenty  thousand  and  under  fifty  thousand 

dollars 2  00 

If  above  fifty  thousand  dollars 2  50 

For  receiving  an  appraisement  or  sale  bill,  and  recording 
same,  if  above  fifty  thousand  dollars  and  under  sixty- 
five  thousand  dollars 2  75 

If  above  sixty-five  thousand  dollars  and- under  eighty 

thousand  dollars 3  00 

If  above  eighty  thousand  dollars  and  under  one  hun- 
dred thousand  dollars   3  50 

If  above  one  hundred  thousand  dollars  and  under  one 

hundred  and  twenty-five  thousand  dollars 4  00 

If  above  one  hundred  and  fifty  thousand  dollars.  .  .    5  00 
For  receiving  application  and  granting  letters  dismissory, 

whole  service 5  00 

For  granting  citation  to  show  cause  why  administration 

should  not  be  set  aside,  or  repealed 2  00 

For  entering  a  caveat  against  administration  being  grant- 
ed or  will  proven 1  25 

For  each  copy  of  caveat .f 50 

For  signing  probate  of  will  or  .codicil 1  25 

For  each  case  litigated  before  the  ordinary,  where  no  fees 

are   prescribed    3  00 

For  issuing  commission  to  examine  witnesses , .  . ,    1  25 


668  ORDINARY 

For  commission  to  have  one  year's  support  set  apart  to 

widow,  minor  or  minors * $1  25 

For  recording  the  same   1  00 

For  examining  book  and  giving  extracts 1  00 

For  every  order  passed  where  no  fees  are  prescribed.  ...        50 
Provided,  that  no  fee  shall  be  charged  for  drawing 
checks,  orders,  drafts  or  warrants  on  the  county 
treasury. 

For  each  affidavit  where  no  case  is  pending 30 

For  every  service  required  and  performed,  for  which  no 
fees  are  specified  by  law,  the  same  fees  as  are  allowed 
clerks  of  the  Superior  Courts  for'  similar  services,  or 
for  a  like  amount  of  labor. 

For  every  marriage  license 1  50 

For  every  order  of  sale  of  land  or  other  property 50 

For  each  copy  of  the  same 25 

For  issuing  letters  of  guardianship 1  00 

For  recording  the  same 50 

For  rule  nisi  in  each  case 50 

For  copy 25 

For  issuing  process  against  a  person  for  not  making  re- 
turn    50 

For  each  additional  copy 25 

For  each  subpoena   15 

For  examining  anol  recording  returns  on  all  estates  not 

worth  more  than  two  thousand  dollars 1  00 

For  all  estates  worth  more  than  two,  and  not  more  than 

five  thousand  dollars 1  25 

For  all  estates  worth  more  than  five,  and  not  over  ten 

thousand  dollars 1  40 

For  all  estates  worth  more  than  ten  thousand  dollars.  .  .    1  60 
For  examining  and  recording  the  returns  of  all  estates 
worth  more  than  ten  thousand  dollars,  and  not  over 

twenty  thousand  dollars 2  00 

For  all  estates  worth  more  than  twenty  thousand  dollars 

and  not  over  forty  thousand  dollars 2  50 

For  all  estates  worth  more  than  forty  thousand  dollars, 

and  not  over  sixty  thousand  dollars 3  00 

For  all  estates  worth  more  than  sixty  thousand  dollars, 

and  not  over  eighty  thousand  dollars 3  50 

For  all  estates  worth  more  than  eighty  thousand  dollars, 

and  not  over  one  hundred  thousand  dollars 400 


ORDINARY  669 

For  all  estates  worth  more  than  one  hundred  thousand 
dollars,  and  not  over  one  hundred  and  twenty-five 

thousand  dollars $450 

For  all  estates  worth  more  than  one  hundred  and  twenty- 
five  thousand  dollars,  and  less  than  one  hundred  and 

fifty  thousand  dollars    5  00 

For  recording  all  vouchers  accompanying  the  returns  of 
administrators,  executors,  and  guardians,  per  one 

hundred  words   15 

For  recording  any  instrument  of  writing  not  mentioned, 

per  one  hundred  words 15 

For  proceedings  to  authorize  titles  to  be  made  to  lands  of 

deceased  persons 5  00 

For  commission  to  freeholders  to  divide  estates 1  25 

For  entering  an  appeal  and  transmitting  the  proceedings 

to  the  Superior  Court 1  50 

For  filing  and  recording  an  official  bond 1  00 

For  services  in  making  settlement  of  accounts  of  any  ex- 
ecutor, administrator,  or  guardian,  as  prescribed  in 

this  Code 10  00 

For  every  stray  horse,  mule,  or  'ass,  for  every  legal  service 

required    2  00 

For  every  bull,  ox,  or  cow,  for  all  services  required 1  25 

For  every  goat,  hog  or  sheep 30 

For  retailer's  bond    1  00 

For  retailer's  license 1  00 

For  copying  and  administering  oath  to  retailer 50 

For  each  peddler's  license 1  25 

For  filing  and  recording  each  bond  the  law  requires.  ...    1  00 

For  recording  marks  and  brands 50 

For  comparing  and  testing  weights  and  measures,   and 

stamping  and  marking  each 10 

For  the  whole  service  in  setting  apart  a  homestead  of 

realty  and  personalty,  when  not  litigated 7  00 

When  objections  or  demurrer  are  filed  and  heard,  in 

addition  to  the  proceeding 3  00 

For  each  fi.  fa.  issued  by  him .*.  .        60 

For  seal  and  certificate,  each 50 

For  recording  any  inventory  or  appraisement,  or  abstract 
of  receipts  and  disbursements  connected  with  an  ac- 
count current,  in  addition  to  foregoing  fees,  fifteen 
(15)  cents  per  hundred  words. 


670  PARENT  AND  CHILD 

PAKENT  AND  CHILD.     §§3012-3030. 


BASTARD — PETITION  TO  LEGITIMATE.     §3013. 


Georgia, County. 

To  the  Superior  Court  of  said  County : 

1.  The  petition  of shows  that  he  is  a 

resident  of  said  county. 

2.  That  he  is  the  father  of  an  illegitimate  male  [or  female] 

child,  of  the  age  of years,  whose  name  is , 

the  name  of  the  mother  of  the  said  child  being 

3.  That  the  mother  of  said  child,  to  wit,  the  said ....  v  .... 
is  now  in  life. 

(If  the  mother  be  dead  that  fact  shall  be  stated;    if  she  be  alive 
she  must  have  notice.) 

4.  Petitioner  desires  that  the  name  of  the  said  child  be 

changed  from  the  name  of to  the  name  of 

.  . ,  and  he  prays  that  said  child  may  be 

legitimized  by  the  name  last  mentioned. 


NOTICE  TO  MOTHER.     §3013. 


Georgia, County. 

To ,  of  said  County : 

You  are  hereby  notified  that  I  have  filed  a  petition  to  the 

term,  19 .  .  .  . ,  of  the Superior  Court, 

to  render  legitimate  a  male  child  named ,  of 

which  you  are  the  mother,  and  asking  that  the  name  of  the  said 
child  be  changed  to  [state  the  new  name]. 

A  copy  of  said  petition  is  hereto  attached.     Said  application 
will  be  heard  at  the term,  19.  .  .  .,  of  said  court. 


AFFIDAVIT  AS  TO  SERVICE  OF  NOTICE. 


Georgia, County. 

Personally  before  me,  an  officer  of  this  State  authorized  to 

administer  oaths,  came f  who,  being  duly 

sworn,  on  oath  says  that  on  the day  of , 


PARENT  AND  CHILD  671 

19.  .  .  .,  he  served  a  copy  of  the  foregoing  notice  and  petition 

attached  upon ,  the  person  therein  named  as 

the  mother  of  said  child. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

,J.P. 


ORDER  OF  COURT  LEGITIMATING  CHILD.    §3013. 


It  appearing  to  the  court  from  the  foregoing  petition  of 

for  legitimation  of  his  child,  named 

,  that ,  the  mother  of  said 

child  is  in  life,  and  that  she  has  been  served  with  notice  of  this 
application,  and  offers  no  objection  thereto,  and  it  further  ap- 
pearing to  the  court  that  said  petition  is  within  the  purview  of 
the  statute  in  such  case  made  and  provided :  It  is  ordered  that 
the  said  petition  be  granted,  and  that  said  child  be,  and  the 
same  is,  hereby  declared  to  be  legitimate,  and  capable  of  inherit- 
ing of  the  father  in  the  same  manner  as  if  born  in  lawful  wed- 
lock and  from  henceforth  the  name  by  which  said  child  shall 
be  known  shall  be. 

This day  of . ,  19 

j.s.c..  .  .c. 


ADOPTION  OF  CHILD — PETITION  FOR.    §3016. 


Georgia, County. 

To  the  Superior  Court  of  said  County: 

The  petition  of .shows: 

1.  That  petitioner  is  desirous  of  adopting  a  child  of  the 

name  of ,  domiciled  in  said  county,  so  as  to 

render  the  said  child  capable  of  inheriting  the  petitioner's  estate. 

2.  Petitioner  shows  that ,  the  father  of 

the   said  child   is  dead    [or  has  abandoned   his  family],   and 

that the  mother  of  said  child,  consents  to  the 

act  of  adoption  by  petition. 

The  written  consent  of ,  the  mother  of  said 

child  is  hereto  attached. 


672  PARENT  AND  CHILD 

3.  Petitioner  desires  that  the  name  of  said  child  be  changed 
from to 

Wherefore,  he  prays  that  said  child  be  declared  by  the  court 
to  be  the  adopted  child  of  petitioner  and  also  capable  of  inherit- 
ing his  estate. 

Petitioner's  Attorney. 


CONSENT  OF  THE  MOTHER. 


Georgia, County. 

I,  the  undersigned,  being  the  mother  of '.  .  . ,  a 

child  of  the  age  of years,  named ,  being 

advised  that has  filed  a  petition  to  the 

term,  19 .  .  .  . ,  of  the Superior  Court,  for  the  adoption 

of  said  child  as  his  own,  so  as  to  render  him  capable  of  inherit- 
ing his  estate,  and  to  change  the  name  of  said  child  to 

hereby  consent  in  writing  to  the  act  of  adoption,  and  the  change 
of  name  as  prayed.     And  I  hereby  waive  the  notice  as  required 
by  law  to  be  given  in  such  cases. 
"  This day  of ,  19 


ORDER  DECLARING  THE  ADOPTION  OF  CHILD.    §3016. 


It  appearing  from  the  petition  of that  he 

desires  to  adopt  a  certain  child,  named ,  for 

the  purpose  of  rendering  said  child  capable  of  inheriting  his 
estate,  and  praying  that  the  name  of  said  child  shall  be  changed 

to ;  and  it  further  appearing  that  the  facts 

stated  in  the  said  petition  are  true,  and  that ,  the 

father  of  said  child,  is  dead,  and  that ,  the 

mother  of  said  child,  which  petitioner  seeks  to  adopt,  has  notice 
of  said  application,  and  has  formally  consented  in  writing  to 
the  act  of  adoption  and  the  change  of  the  name  of  the  child  as 
prayed ;  and  the  court  being  further  satisfied  that  such  adoption 
will  be  to  the  interest  of  the  said  child:  It  is  further  ordered 
that  said  child  be,  and  he  is,  hereby  declared  to  be  the  adopted 
child  of  the  said and  capable  of  inheriting  the 


PARENT  AND  CHILD  673 

estate  of  the  said ,  and  that  henceforth  the 

name  of  the  said  child  shall  be 

This day  of ,  19 

J.  S.  C..  .  .0. 


OBJECTION  BY  RELATIVE  TO  ACT  OF  ADOPTION.     $3017. 


And  now  comes ,  being  related  by  blood  to 

- ,  the  child  whom is  seeking 

by  petition  filed  to  the term,  19.  .  .  .,  of 

Superior  Court,  to  adopt  as  his  own  child,  the  undersigned 

being  the "...  of  the  child,  the  father  and  mother  of  the 

said  child  both  being  dead,  and  files  objection  to  such  applica- 
tion, and  for  cause  of  objection  says  that  [set  out  the  cause  of 
objection]. 

This day  of ,  19 


ORDER  OF  THE  COURT  THEREUPON. 


jn  re  1  Petition  for  the  adoption  of  a  child  named 

,  pending  in Superior 

'  )       Court,  No , '.  .  Term,  19 

The  foregoing  petition  of for  the  adoption 

of  a  child  named ,  and  the  objection  of , 

the .  .  . .  '. of  said  child,  filed  to  such  application,  read 

and  considered,  and  after  hearing  the  same  it  is  ordered  that 

the  objections  filed  by to  the  act  of  adoption, 

and  the  evidence  presented  in  support  thereof,  constitute  no 
good  reason  for  refusing  the  application,  and  the  court  in  the 
exercise  of  the  discretion  conferred  by  law,  hereby  overrules 
said  objections. 

It  is  further  ordered  that  said  child  be,  and  the  same  is, 

hereby  declared  to  be  the  adopted  child  of  said and 

capable  of  inheriting  his  estate,  and  that  henceforth  the  name 
of  said  child  shall  be 

This day  of ,  19 


J.  S.  C C. 


674  PAYMENT 

PAYMENT.    §§4311-4317,  6287. 


PLEA  OF  PAYMENT.     §§4311,  62,87. 


(State  the  case.) 

And  now  comes  the  defendant,  and  for  [further]  plea  and 
answer  in  this  behalf  says : 

1.  That  on  the day  of .  .,  19 ,  at 

,  in  said  county,  defendant  paid  to 

agent  of  the  plaintiff,  the  sum  of dollars  in  money, 

in  full  payment  and  satisfaction  of  the  principal  and  interest 
of  the  note  sued  on. 

2.  That  at  the  time  and  place  in  question  the  said 

was  the  agent  (or  attorney  at  law)  of  the  plaintiff,  and  author- 
ized to  collect  and  receive  payment  thereof. 

[Or,  if  payment  was  made,  but  less  than  the  full  amount  of 
the  note,  principal  and  interest,  the  following  allegation  may 
be  used:] 

On  the day  of . ,  19 .  .  .  . ,  the  defendant, 

at ,  in  said  county,  paid  to  the  plaintiff  the  sum 

of dollars  in  money,  which  does  not  appear  entered 

as  a  credit  on  said  note,  for  which  payment  the  defendant  is 
entitled  to  credit  on  said  note. 

And  of  this  he  puts  himself  upon  the  country. 


Defendant's  Attorney. 


(NOTE:     If  suit  is  on  note  in  court  other  than  justice  court,  this 
plea  should  be  verified.) 


Plea  should  show  with  reasonable  certainty,  when,  how  and  to  whom 
payment  was  made,  or  defect  should  be  pointed  out  by  special  de- 
murrer, and  when  done,  it  is  amendable  in  these  respects.  18  App. 
414,  415  (89  S.  E.  339);  14  App.  298  (80  S.  E.  698);  98/173  (25  S. 
E.  414) ;  125/388  (54  S.  E.  135).  Time  of  payment  should  be  speci- 
fied but  omission  not  reached  by  general  demurrer.  83/322  (9  S. 
E.  750).  Allegations  of  payment  should  state  the  facts  with  par- 
ticularity, and  it  is  not  sufficient  to  set  forth  that  deponent  "is 
advised  and  believes"  that  debt  has  been  settled  in  full.  18  App. 
780  (4)  (90  S.  E.  722).  Plea  which,  while  alleging  the  person  to 
whom  alleged  payments  were  made  nevertheless  fails  to  allege 
when  and  how  they  were  made,  with  such  reasonable  certainty  as 
to  enable  the  opposite  party  to  prepare  to  meet  the  plea,  is  in- 
sufficient. 15  App.  741  (3)  (84  S.  E'.  201).  Plea  of  partial  pay- 
ment setting  out  neither  time,  place  nor  amount,  is  insufficient. 
125/73  (5)  (54  S.  E.  77). 


PENDENCY  OF  ACTION — POSSESSORY  WARRANT         675 

PENDENCY  OF  ACTION. 
(See  Lis  Pendens,  ante.) 


PETITIONS. 

(See  Declarations  or  Petitions,  ante.) 


POSSESSORY  .WARRANT.     §§5371-5379. 


AFFIDAVIT. 


Georgia, County. 

Personally  before  me,  the  undersigned ,  judge 

of  the  Superior  Court  of county  [or  judge  of  the 

county  court  of  said  county,  or  a  justice  of  the  peace  of  said 

county] ,  came ,  who  on  oath  says  that  on  the 

-day  of ,  19.  .  .  .,  a  certain  personal  chattel, 

to  wit:  [Describe  the  chattel]  was  taken,  enticed  or  carried 
away,  either  by  fraud,  violence,  seduction  or  other  means,  by 
the  said .from  the  possession  of  deponent. 

[Or,  That  a  certain  personal  chattel,  to  wit  [describe  it], 
having  recently  been  in  the  quiet,  peaceable  and  legally  acquired 
possession  of  deponent,  has  disappeared  without  his  consent, 
and  as  he  believes  has  been  received  or  taken  possession  of  by 

the  said under  some  pretended  claim,  and 

without  lawful  warrant  or  authority.]  And  that  deponent  does 
in  good  faith  claim  a  title  to  [or  interest  in,  or  the  possession 

of]  the  said And  deponent  makes  this  affidavit 

that,  a  warrant  may  issue  in  terms  of  the  law. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


(Official  designation.) 


[Nora. — Two  grounds  are  set  forth  in  the  foregoing  affidavit,  only  one 
of  them  should  be  used  in  the  particular  instance,  the  one  or  the  other 
of  them,  according  to  the  facts  of  the  particular  case.  §4799.] 


676  POSSESSORY  WARRANT 

-'"•**.     '     .  ** 

i» . 

WARRANT.    §5371. 


Georgia, '.  .  .  County. 

To  the  Sheriff,  His  Deputy,  or  any  Lawful  Constable  of  said 
County : 

• having  this  day  made  oath  before  me  that 

a  certain  chattel  [describe  it]  of  the  value  of dollars 

has  been  taken,  enticed,  or  carried  away,  either  by  fraud,  ~vio- 

lence,  seduction  or  other  means,  by  one ' .  .  .  from 

the  possession  of  the  said 

[Or,  That  a  certain  personal  chattel  [describe  it]  of  the  value 

of dollars,  having  recently  been  in  the  quiet, 

peaceable  and  legally  acquired  possession  of  the  said 

has  disappeared  without  his  consent,  and  as  he  believes  has  been 

received  or  taken  possession  of  by  the  said under 

some  pretended  claim,  and  without  lawful  warrant  or  authority.] 

And  that  the  said does  in  good  faith  claim  a 

title  to  [or  an  interest  in,  or  the  possession  of]  said  property. 

These  are  therefore  to  command  you  to  apprehend  the  said 

,  and  seize  said  property  if  it  be  found  in  said 

county,  and  bring  them  before  me,  or  any  judge  of  the  Superior 
Court,  or  of  the  county  court,  or  justice  of  the  peace  of  said 
county,  together  with  this  warrant,  that  justice  may  be  done  in 
the  premises. 

Given  under  my  hand  and  official  signature,  this day 

of ,  19 


ENTRY  OF  OFFICER  WHERE  PROPERTY  CAN  NOT  BE  FOUND. 


Executed  the  within  warrant  by  arresting  the  body  of  the 

defendant and  have  him  now  before  the  court. 

After  diligent  search  I  have  been  unable  to  find  and  seize  the 
property  described  in  the  warrant. 

This  the day  of ,19 

,  L.  C. 


COMMITMENT  OF  THE  DEFENDANT.     §5377. 


(State  the  case.) 
To  the  Sheriff  and  Jailer  of  Said  County : 

It  appearing  to  the  court  by  the  return  of , 

lawful  constable  of  said  county,  entered  upon  the  warrant  in 


POSSESSORY  WARRANT  677 

the  above  stated  case,  that  the  said  officer  can  not  find  said  prop- 
erty, and  it  further  appearing  that  such  property  is  in  the 
possession,  power,  custody  or  control  of  the  defendant  [or  any 
agent  or  friend  of  his,  or  any  one  acting  for  or  intrusted  with 

the  same  for  him]  and  that  said fails  to  produce 

or  cause  said  property  to  be  forthcoming  to  be  dealt  with  as  the 
law  directs,  and  as  the  judgment  of  the  court  may  award: 

It  is  ordered  that  the  said be  committed  to 

the  common  jail  of county,  there  to  remain  in 

safe  and  close  custody  without  bail  until  said  property  shall  be 
produced  or  forthcoming  to  be  disposed  of  as  aforesaid. 

Wherefore  you  are  commanded  to  receive  the  body  of  the  said 

and  him  safely  keep  in  said  jail  in  accordance 

with  this  order. 

Given  under  my  hand  and  official  signature,  this dav 

of 'l9 


JUDGMENT  IN  REFERENCE  TO  BOND. 


(State  the  case.) 

After  hearing  evidence  as  to  the  question  of  possession  of  the 
property  in  the  above  stated  case  it  is  considered,  ordered  and 
adjudged  by  the  court,  that  the  property  therein  mentioned  be 
delivered  to  the  plaintiff,  upon  his  entering  into  a  recognizance 
with  good  and  sufficient  security,  as  required  by  law,  or  upon 
his  refusal  or  failure  to  give  such  security  that  the  said  property 
be  turned  over  to  the  defendant  upon  his  giving  bond  as  required 
by  law,  and  that  the  defendant  pay  the  cost  of  this  proceeding. 

This day  of ,  19.  ... 


BOND  WHERE  PROPERTY  Is  TURNED  OVER  TO  PLAINTIFF. 


Georgia, County. 

\Ve, ,  principal,  and , 

security,  acknowledge  ourselves  jointly  and  severally  held  and 

bound  to ,  his  heirs,,  executors,  administrators 

and  assigns,  in  the  sum  of  [double  the  value  of  the  property 
seized]  for  the  payment  of  which  we  bind  ourselves,  our  heirs, 
executors,  administrators,  firmly  by  these  presents. 

The  condition  of  this  bond  is  as  follows : 


678  POSSESSORY  WARRANT 

The  said having  on  the day  of , 

19.  .  .  .,  sued  out  a  possessory  warrant  against 

for  the  recovery  of  the  possession  of  a  certain  chattel,  to  wit: 

'[Describe  the  property]  of  the  value  of dollars, 

arid  upon  the  trial  of  said  cause,  on  the day  of , 

19. . .  .,  before ,  a  justice  of  the  peace  in  and 

for  said  county,  the  possession  of  said  property  having  been 

adjudged  by  the  court  in  favor  of  said upon 

his  giving  bond  and  security  as  required  by  law;  now,  if  the 

said shall  cause  the  said  property  to  be  produced 

and  forthcoming  to  answer  any  judgment,  execution,  or  decree 
that  may  be  had,  issued  or  made  upon  such  suit  or  action  at  law 
or  in  equity  as  the  opposite  party  may  commence  within  the 
next  four  years  then  this  bond  to  be  void;  else  of  force. 

Witness  our  hands  and  seals  this day  of , 

19 

,  Principal   [L.  S.] 

,  Security     [L.  S.] 

Executed  in  the  presence  of,  and  approved 
by  me ,  J.  P. 


BOND  WHERE  DEFENDANT  TAKES  POSSESSION  OF  THE 
PROPERTY.     §5374. 


We, ,  principal,  and , 

security,  acknowledge  ourselves  held  and  bound  to , 

his  heirs  and  executors,  administrators  and  assigns  in  the  sum 
of  [double  the  value  of  the  property  seized]  for  the  payment  of 
which  we  bind  ourselves,  our  heirs,  executors  and  administrators, 
jointly  and  severally,  firmly  by  these  presents. 

The  condition  of  this  bond  is  as  follows : 

The  said having  on  the day 

of ,  19 . . . . ,  sued  out  a  possessory  warrant  against 

,  for  the  recovery  of  the  possession  of  a 

certain  chattel,  to  wit:  [Describe  the  property]  of  the  value 

of dollars,  and.  upon  the  trial  of  said  cause  on 

the day  of ,  19.  .  .  .,  before. , 

a  justice  of  the  peace  for  said  county,  the  right  to  the  possession 
of  the  said  property  having  been  adjudged  by  the  court  in  favor 

of  said upon  his  giving  bon,d  and  security  as 

required  by  law,  or  upon  his  failure  to  give  said  bond  that  said 


POSSESSORY  WARRANT  -  679 

property  be  delivered  to  said  defendant  upon  his  giving  bond  as 

required  by  law ;  and  the  said having  failed 

to  give  such  bond  as  required  by  the  judgment  of  said  court; 

now,  if  the  said .shall  cause  the  said  property 

to  be  produced  and  forthcoming  to  answer  any  judgment,  execu- 
tion or  decree  that  may  be  had,  issued  or  made  upon  such  suit 

or  action  at  law  or  in  equity  as  the  said.  . may 

commence  within  the  next  four  years,  then  this  bond  to  be  void ; 
else  of  force. 

Witness  our  hands  and  seals  this day  of , 

19.... 

,  Principal   [L.  S.] 

,  Security     [L.  S.] 

Executed  in  the  presence  of  and  approved 
by  me ,  J.  P. 


NOTICE  OF  INTENTION  TO  CERTIORARI.     §5375. 


(State  the  case.) 
To..... : 

You  are  hereby  notified  that  I  intend  to  certiorari  the  decision 
of  the  court  rendered  in  the  above  stated  cause  to  the  Superior 
Court. 

This day  of ,  19 


[NOTE.— Service  may  be  upon  the  opposite  party,  or  upon  his  agent  or 
attorney,  should  this  he  done  it  will  operate  as  a  supersedeas  for  ten 
days  from  the  trial,  during  which  time  the  officer  should  retain  pos- 
session.] 


Agent  of  owner  of  property  for  purposes  of  bailment  refusing  to  return 
property  on  demand,  possessory  warrant  will  lie  in  favor  of  owner. 
18  App.  275  (1)  (89  S.  E.  302);  13  App.  555  (1)  (79  S.  E.  481). 
See  17  App.  659  (87  S.  E.  1089).  Fact  that  agent  sold  to  bailor 
certain  goods  on  credit  would  not  entitle  him  to  hold  property  as 
payment  of  debt,  and  such  defense  would  avail  naught  on  trial  of 
possessory  warrant.  18  App.  275  (2)  .(89  S.  E.  302). 

Certiorari  was  erroneously  refused  where  decision  awarding  property 
to  landlord  was  contrary  to  law  and  evidence,  which  showed  that 
tenant  was  entitled  to  possession.  16  App.  634  (2)  (85  S.  E.  935). 

Consent.  Possessory  warrant  is  not  proper  means  for  recovery  of  per 
sonalty,  unless  possesion  was  acquired  by  fraud,  violence,  or 
seduction,  and  without  consent  of  the  complaining  party.  13  App. 
329  (79  S.  E.  169). 


680  PHAC-TICE  IN  SUPREME  COURT 

Contempt.  Justice  had  power  to  imprison  defendant  cropper  for  con- 
tempt where  he  admitted  that  he  sold  bale  of  cotton,  to  which 
landlord  had  both  title  and  right  of  possession,  and  refused  to 
pay  over  proceeds,  though  admitting  it  to  be  within  his  power 
to  do  so.  17  App.  519  (2)  (87  S.  E.  763). 

Domestic  fixtures,  placed  by  tenant  wrongfully  deprived  of  possession, 
may  be  recovered  by  possessory  warrant.  124/504  (52  S.  E,  619). 

Intoxicating  liquor.  Possession  of  intoxicating  liquor,  not  obtained  in 
violation  of  prohibition  law,  may  be  regained  by  possessory  war- 
rant. 14  App.  13  (80  S.  E.  34). 

Judgment.  Rule  that  judge  of  superior  court,  on  petition  for  certiorari, 
can  not  render  final  judgment  where  there  is  conflicting  evidence 
on  any  material  issue,  does  not  apply  where  petition  is  overruled. 
16  App.  163  (84  S.  E'.  616). 

Possession.  Where  undisputed  evidence  shows  that  tenant  acquired 
possession  of  property  without  fraud  and  under  contract  with 
landlord,  possessory  warrant  taken  out  by  landlord  should  have 
been  dismissed.  16  App.  634  (85  S.  E.  935).  Possession  must  be 
acquired  in  one  of  the  modes  set  forth  in  Code,  §5371.  121/97  (48 
S.  E.  695). 

Presumption  that  defendant's  possession  was  lawful  does  not  arise.  13 
App.  555  (79  S.  E.  481). 


PKACTICE  IN  SUPREME  COURT.    §§6119-6259. 


Act  August  21,  1911,  (Acts  1911,  p.  149,— Park's  Annotated 
Code  of  Georgia,  §§6164  (a),  6164  (b)  ;  792  (a),  1090  (a), 
1101  (a)  P.  C.),  provides  as  follows: 

SECTION  1.  Be  it  hereby  enacted  by  the  General  Assembly 
of  Georgia,  that  aft.er  the  passage  of  this  Act  no  Judge  of  the 
Superior  Courts  shall  grant  the  writ  of  certiorari  or  sustain 
such  writ  in  a  criminal  or  quasi  criminal  case  on  the  ground 
that  the  venue  was  not  proved  in  the  trial  court,  or  that  the 
time  of  the  commission  of  the  offense  was  not  proved,  unless 
there  is  a  distinct  allegation  in  the  petition  for  the  writ  of 
failure  to  prove  the  venue  or  time,  and  an  assignment  of  error 
as  to  such  matters. 

SEC.  2.  Be  it  further  enacted,  That  no  judgment  of  a  trial 
court  in  a  criminal  case  shall  be  reversed  by  either  the  Supreme 
Court  or  the  Court  of  Appeals  for  lack  of  proof  of  venue  or  of 
the  time  of  the  commission  of  the  offense,  save  where  the  par- 
ticular point  has  been  specifically  raised  by  a  ground  of  the 
original  or  amended  motion  for  a  new  trial. 

SEC.  3.  Be  it  further  enacted,  That  where  the  Judge  has 
finally  passed  on  the  merits  of  a  motion  for  a  new  trial  and  the 
parties  have  raised  no  question  as  to  the  sufficiency  of  the  ap- 


PRACTICE  IN  SUPREME  COURT         681 

proval  of  the  grounds  of  such  motion,  or  of  the  approval  of  the 
brief  of  evidence,  or  of  the  filing  of  such  motion  or  brief,  or  of 
the  jurisdiction  of  the  Judge  to  entertain  the  motion  at  the  time 
he  did,  if  the  parties  acquiesced  in  his  entertaining  it  at  that 
time,  no  question  as  to  these  matters  shall  be  entertained  by  the 
reviewing  courts  unless  first  raised  and  insisted  on  before  the 
trial  Judge. 

SEC.  4.  Be  it  further  enacted,  That  where  a  bill  of  excep- 
tions which  can  be  identified  as  excepting  to  a  specific  judgment 
is  served  upon  counsel  of  record  in  the  case,  such  service  shall 
be  held  to  bind  all  parties  whom  said  counsel  represented  in  the 
trial  court.  Where  counsel  acknowledged  service  upon  a  bill 
of  exceptions,  such  acknowledgment  shall  be  held  to  be  a  com- 
plete waiver  of  all  defects  in  the  service  which  the  counsel  sign- 
ing it  is  legally  competent  to  waive,  whether  such  signing  is 
done  before  or  after  the  signing  of  the  writ  of  error,  unless 
counsel  in  the  entry  of  acknowledgment  distinctly  and  specific- 
ally states  that  it  is  not  to  be  construed  as  waiving  some  par- 
ticular defect  then  pointed  out  by  him.  If  such  acknowledg- 
ment of  service  is  properly  entitled  in  the  cause,  it  need  not  be 
physically  attached  to  the  bill  of  exceptions. 

SEC.  5.  Be  it  further  enacted,  That  where  an  acknowledg- 
ment of  service  has  been  procured  as  provided  in  Section  4  of 
this  Act,  the  bill  of  exceptions  may  be  amended  in  the  reviewing 
court  by  making  any  person  a  party  defendant  in  error  to  the 
case  who  is  bound  by  such  service  although  such  person  may 
not  have  been  named  in  the  bill  of  exceptions. 

Act  August  19,  1916,  (Acts  1916,  p.  19)  reads  as  follows: 

SECTION  1.  The  general  Assembly  of  the  State  of  Georgia 
hereby  proposes  to  the  people  of  Georgia  an  amendment  to  sec- 
tion 2  of  article  6  of  the  Constitution  of  this  State,  as  follows : 

1.  By  changing  paragraph  5  of  said  section,  so  it  will  read 
as  follows :  "Paragraph  5.  The  Supreme  Court  shall  have  no 
original  jurisdiction,  but  shall  be  a  court  alone  for  the  trial  and 
correction  of  errors  of  law  from  the  superior  courts  and  the 
city  courts  of  Atlanta  and  Savannah,  and  such  other  like  courts 
as  have  been  or  may  hereafter  be  established  in  other  cities,  in 
all  cases  that  involve  the  construction  of  the  Constitution  of  the 
State  of  Georgia  or  of  the  United  States,  or  of  treaties  between 
the  United  States  and  foreign  governments ;  in  all  cases  in  which 
the  constitutionality  of  any  law  of  the  State  of  Georgia  or  of 
the  United  States  is  drawn  in  question;  and,  until  otherwise 
provided  by  law  in  all  cases  respecting  titles  to  land  in  all 


682  PRACTICE  IN  SUPREME  COURT 

equity  cases;  in  all  cases  which  involve  the  validity  of,  or  the 
construction  of  wills;  in  all  cases  of  conviction  of  a  capital 
felony;  in  all  habeas  corpus  cases;  in  all  cases  involving  extra- 
ordinary remedies ;  in  all  divorce  and  alimony  cases,  and  in  all 
cases  certified  to  it  by  the  Court  of  Appeals  for  its  determina- 
tion. It  shall  also  be  competent  for  the  Supreme  Court  to  re- 
quire by  certiorari  or  otherwise  any  case  to  be  certified  to  the 
Supreme  Court  from  the  Court  of  Appeals  for  review  and  de- 
termination with  the  same  power  and  authority  as  if  the  case 
had  been  carried  by  writ  of  error  to  the  Supreme  Court.  Any 
ca'se  carried  to  the  Supreme  Court  or  to  the  Court  of  Appeals, 
which  belongs  to  the  class  of  which  the  other  court  has  jurisdic- 
tion, shall,  until  otherwise  provided  by  law,  be  transferred  to 
the  other  court  under  such  rules  as  the  Supreme  Court  may 
prescribe,  and  the  cases  so  transferred  shall  be  heard  and  de- 
termined by  the  court  which  has  jurisdiction  thereof." 

2.  Paragraph  9  shall  be  amended  to  read  as  follows :  "The 
Court  of  Appeals  shall  consist  of  the  judges  provided  therefor 
by  law  at  the  time  of  the  ratification  of  this  amendment,  and 
of  such  additional  judges  as  the  General  Assembly  shall  from 
time  to  time  prescribe.  All  terms  of  the  judges  of  the  Court 
of  Appeals  after  the  expiration  of  the  terms  of  the  judges  pro- 
vided for  by  law  at  the  time  of  the  ratification  of  the  amend- 
ment (except  unexpired  terms)  shall  continue  six  years,  and 
until  their  successors  are  qualified.  The  time  and  manner  of 
electing  judges,  and  the  mode  of  filling  a  vacancy  which  causes 
an  unexpired  term,  shall  be  the  same  as  are  or  may  be  provided 
for  by  the  laws  relating  to  the  election  and  appointment  of 
Justices  of  the  Supreme  Court.  The  Court  of  Appeals  shall 
have  jurisdiction  for  the  trial  and  correction  of  errors  of  law 
from  the  superior  courts  and  from  the  city  courts  of  Atlanta 
and  Savannah,  and  such  other  like  courts  as  have  been  or  may 
hereafter  be  established  in  other  cities,  in  all  cases  in  which 
such  jurisdiction  has  not  been  conferred  by  this  Constitution 
upon  the  Supreme  Court,  and  in  such  other  cases  as  may  here- 
after be  prescribed  by  law ;  except  that  where  a  case  is  pending 
in  the  Court  of  Appeals  and  the  Court  of  Appeals  desires  in- 
struction from  the  Supreme  Court,  it  may  certify  the  same  to 
the  Supreme  Court,  and  thereupon  a  transcript  of  the  record 
shall  be  transmitted  to  the  Supreme  Court,  which,  after  having 
afforded  to  the  parties  an  opportunity  to  be  heard  thereon,  shall 
instruct  the  Court  of  Appeals  on  the  question  so  certified,  and 
the  Court  of  Appeals  shall  be  bound  by  the  instructions  so 


PRACTICE  IN  SUPREME  COURT  683 

given.  But  if  by  reason  of  equal  division  of  opinion  among 
the  Justices  of  the  Supreme  Court  no  such  instruction  is 
given,  the  Court  of  Appeals  may  decide  the  question.  The 
manner  of  certifying  questions  to  the  Supreme  Court  by  the 
Court  of  Appeals,  and  the  subsequent  proceedings  in  regard  to 
the  same  in  the  Supreme  Court,  shall  be  as  the  Supreme  Court 
shall  by  its  rules  prescribe,  until  otherwise  provided  by  law. 
No  affirmance  of  the  judgment  of  the  court  below  in  cases  pend- 
ing in  the  Court  of  Appeals  shall  result  from  delay  in  disposing 
of  questions  or  cases  certified  from  the  Court  of  Appeals  to  the 
Supreme  Court,  or  as  to  which  such  certificate  has  been  required 
by  the  Supreme  Court  as  hereinbefore  provided.  All  writs  of 
error  in  the  Supreme  Court  or  the  Court  of  Appeals,  when  re- 
ceived by  its  clerk  during  a  term  of  the  court  and  before  the 
docket  of  the  term  is  by  order  of  the  court  closed,  shall  be 
entered  thereon;  when  received  at  any  other  time,  shall  be 
entered  on  the  docket  of  the  next  term ;  and  they  shall  stand  for 
hearing  at  the  term  for  which  they  are  .so  entered,  under  such 
rules  as  the  court  may  prescribe,  until  otherwise  provided  by 
law.  T^he  Court  of  Appeals  shall  appoint  a  clerk  and  a  sheriff 
of  the  court.  The  reporter  of  the  Supreme  Court  shall  be  re- 
porter of  the  Court  of  Appeals  unfil  otherwise  provided  by  law. 
The  laws  relating  to  the  Supreme  Court  as  to  qualifications  and 
salaries  of  judges,  the  designation  of  other  judges  to  preside 
when  members  of  the  court  are  disqualified,  the  powers,  duties, 
salaries,  fees  and  terms  of  officers,  the  mode  of  carrying  cases 
to  the  court,  the  powers,  practice,  procedure,  times  of  sitting, 
and  costs  of  the  court,  the  publication  of  reports  of  cases  decided 
therein,  and  in  all  other  respects,  except  as  otherwise  provided 
in  this  Constitution  or  by  the  laws  as  to  the  Court  of  Appeals 
at  the  time  of  the  ratification  of  this  amendment,  and  until 
otherwise  provided  by  law,  shall  apply  to  the  Court  of  Appeals 
so  far  as  they  can  be  made  to  apply.  The  decisions  of  the 
Supreme  Court  shall  bind  the  Court  of  Appeals  as  precedents." 
SEC.  2.  Be  it  further  enacted  by  the  authority  aforesaid, 
That  whenever  the  above  proposed  amendment  to  the  Constitu- 
tion, of  this  State  shall  be  agreed  to  by  two-thirds  of  the  mem- 
bers elected  to  each  of  the  Houses  of  the  General  Assembly, 
and  the  same  has  been  entered  upon  their  journals,  with  the 
yeas  and  nays  taken  thereon,  the  Governor  shall  and  he  is  hereby 
authorized  and  instructed  to  cause  the  above  proposed  amend- 
ment to  be  published  in  one  or  more  newspapers  in  each  con- 
gressional district  in  this  State  for  the  period  of  two  months 


684  PRACTICE  IN  SUPREME  COUKT 

next  preceding  the  time  of  holding  the  next  general  election; 
and  the  Governor  is  hereby  authorized  and  directed  to  provide 
for  the  submission  of  the  amendment  proposed  for  ratification 
or  rejection  to  the  electors  of  this  State,  at  the  next  general 
election  to  be  held  after  said  publication,  at  which  election 
every  person  shall  be  qualified  to  vote  who  is  entitled  to  vote 
for  members  of  the  General  Assembly.  All  persons  voting 
at  such  election  in  favor  of  adopting  the  said  proposed  amend- 
ment shall  have  written  or  printed  on  their  ballots  the  words, 
"For  amendment  to  the  Constitution,  altering  the  Appellate 
Court  System  of  the  State  of  Georgia."  All  persons  opposed 
to  the  adoption  of  said"  amendment,  shall  have  written  or 
printed  on  their  ballots  the  words,  "Against  the  amendment 
to  the  Constitution,  altering  the  Appellate  Court  System  of 
the  State  of  Georgia."  If  a  majority  of  the  "electors  qualified 
to  vote  for  members  of  the  General  Assembly,  voting  thereon, 
shall  vote  for  ratification,  the  Governor  shall,  when  he  ascer- 
tains the  same  from  the  Secretary  of  State,  to  whom  the  returns 
from  said  election  shall  be  referred  in  the  same  manner  as  in 
cases  of  election  for  members  of  the  General  Assembly,  to  count 
and  ascertain  the  result,  issue  his  proclamation  for  one  insertion 
in  one  daily  paper  of  the  State,  announcing  such  result  and 
declaring  the  amendment  ratified. 


CERTIORARI  RULES  or  SUPREME  COURT  OF  GEORGIA. 
(Adopted  December  18,  1916.) 


RULE  1.  No  decision  of  the  Court  of  Appeals  wTill  be  re- 
viewed by  certiorari  unless  the  applicant  give  written  notice  to 
the  clerk  of  the  Court  of  Appeals  within  ten  days  after  the 
filing  of  the  judgment  of  his  intention  to  apply  to  the  Supreme 
Court  for  a  wrrit  of  certiorari,  nor  unless  such  application  for 
certiorari  be  filed  with  the  clerk  of  the  Supreme  Court  within 
thirty  days  from  the  filing  of  the  judgment  in  the  Court  of 
Appeals. 

RULE  2.  Where  an  application  is  submitted  to  this  court  for 
a  writ  of  certiorari  to  review  a  decision  of  the  Court  of  Appeals, 
the  petitioner  must  furnish  as  an  exhibit  to  the  petition  a  certi- 
fied copy  of  the  entire  record  of  the  case  in  the  Court  of  Appeals, 
or,  in  lieu  thereof,  a  copy  of  such  record  omitting  the  evidence 
if  the  evidence  is  not  deemed  necessary  by  the  applicant.  In 


PRACTICK  IN  SIIMJK.MK  COURT  685 

cither  event  the  transcript  shall  contain  a  copy  of  the  judgment 
and  of  the  opinion  or  opinions  of  the  Court  of  Appeals.  If  this 
court  shall  be  of  the  opinion  that  the  evidence  is  necessary  for 
a  determination  of  the  question  raised  in  the  petition,  the  appli- 
cant will  he  required  to  furnish  a  certified  copy  of  the  evidence, 
and  on  his  failure  to  comply  with  the  order  of  this  court  in  this 
respect  the  writ  will  be  denied.  The  petition  shall  contain  a 
succinct  abstract  and  statement  of  the  matter  involved,  and  the 
specific  reason  or  reasons  relied  on  for  the  allowance  of  the  writ. 
A  failure  to  comply  with  this  provision  will  be  deemed  a  suffi- 
cient reason  for  denying  the-petition.  Notice  of  the  date  of  the 
filing  of  the  petition,  together  with  a  copy  of  the  petition,  and 
brief,  if  any,  in  support  of  the  same,  shall  be  served  on  counsel 
for  the  respondent  within  three  days  after  such  date;  the  brief 
for  respondent,  if  any,  shall  be  filed  within  five  days  of  such 
service.  Oral  argument  will  not  be  permitted  on  such  petition. 

RULE  3.  All  applications  for  a  writ  of  certiorari  to  the  Court 
of  Appeals  must  be  filed  with  the  clerk  of  the  Supreme  Court 
and  shall  be  by  him  submitted  to  the  court  on  the  tenth  day 
after  such  filing.  The  clerk  of  the  Supreme  Court  shall  give 
notice  to  the  clerk  of  the  Court  of  Appeals  of  the  filing  of  all 
applications  for  the  writ  of  certiorari. 

RULE  4.  Applications  for  certiorari  shall  be  docketed  as 
other  cases.  The  costs  in  such  cases  shall  be  ten  dollars  and 
shall  be  paid  to  the  clerk  on  the  filing  of  the  application  for 
certiorari.  On  failure  to  pay  the  costs,  the  clerk  shall  not  file 
the  application. 

BILL  OF  EXCEPTIONS,  WHERE  MOTION  FOR  NEW  TRIAL  FILED. 

§6142. 


Georgia, County. 

Be  it  remembered  that  on  the day  of , 

19.  .  .  .,  at  the  regular term  of  the  city  court 

of .'..'.,  before  the  Honorable ,  judge, 

presiding,  there  came  on  to  be  tried  the  case  of 

against ,  the  same  being Said 

suit  was  filed  on  the day  of ,  19.  ...     Said 

petition  was  amended  on day  of ,  19.  ... 

During  the  trial  of  said  case  as  aforesaid,  to  wit,  on  the 

day  of ,   19.  .  .  .,  the  plaintiff  tendered  another 

amendment  to  the  petition  in  said  case  [state  enough  to  identify 


686  PRACTICE  IN  SUPREME  COURT 

the  amendment] .  On  the day  of , 

the  plaintiff  then  and  there  entered  an  amendment  to  which 
defendant  objected,  which  said  objections  were  overruled,  •  and 
the  defendant  filed  his  exceptions  pendente  lite  thereto,  which 
were  certified  by  the  judge,  allowed  and  made  a  part  of  the 
record,  the  exceptions  therein  being  stated,  and  upon  which 
plaintiff  in  error  then  and  there  excepted,  and  now  excepts,  and 
assigns  error  thereon  as  being  contrary  to,  law,  and  says  that  the 
judge  should  have  sustained  the  objections  upon  each  and  all 
the  grounds  therein  assigned. 

Defendant  then  tendered  the  plea  of  the  statute  of  limitation 
which  was  on  the  objection  of  the  plaintiff  disallowed  by  order 

of  the  -court  dated  the day  of ,  19 .  .  .  . , 

which  fully  appears  in  the  pendente  lite  exceptions  filed  to  the 
judgment  of  the  court  overruling  said  motion  to  dismiss  said 
case.  After  said  amendment  was  filed  the  defendant  within  the 
time  provided  by  law  tendered  a  bill  of  exceptions  pendente  lite 

and  the  same  was  certified  and  filed  on  the day 

of ,  19.  .  .  .,  and  the  defendant  excepted,  and  now 

excepts,  and  assigns  error  on  the  pendente  lite  bill  of  exceptions, 
and  says  that  the  court  erred  in  not  dismissing  said  case  when 
so  amended  on  the  grounds  that  the  same  set  forth  no  cause  of 
action. 

To  the  judgment  of  the  court  allowing  said  amendment  on 

the day  of ,  19.  .  .  .,  the  defendant  likewise 

filed  exceptions  pendente  lite,  and  now  assigns  error  thereon, 
and  says  that  the  court  erred  in  allowing  'said  amendment  on 
all  of  the  grounds  of  objection  thereto  made  at  the  time  said 
amendment  was  offered  and  before  it  was  allowed  and  filed,  as 
fully  appears  in  the  exceptions  pendente  lite  of  record. 

To  the  ruling  and  judgment  of  the  court  rejecting  defendant's 
said  plea  of  the  statute  of  limitations  defendant  likewise  filed 
its  bill  of  exceptions  pendente  lite  as  appears  on  record,  and  now 
assigns  error  on  the  ruling  and  judgment,  and  says  that  the 
court  erred  in  rejecting  and  disallowing  the  plea  of  the  statute 
of  limitations  on  each  and  all  of  the  grounds  taken  in  said  ex- 
ception pendente  lite  of  record. 

The  bill  of  exceptions  pendente  lite  and  ruling  and  judgment 
of  the  court  allowing  said  amendment  and  rejecting  said  plea  of 
the  statute  of  limitations  was  duly  allowed  and  certified  and 

made  a  part  of  the  record  by  order  of  the  court,  dated  the 

day  of ,  19.  . .  .,  and  the  same  was  duly  filed  on 

the  same  date. 


PRACTICE  TN  SUPREME  COURT  C87 

Said  case  proceeded  to  verdict  and  judgment  in  favor  of  the 

plaintiff  at term,  19 .  .  .  . ,  for  the  sum  of 

dollars,  and  thereafter  motion  for  new  trial  was  made  in  regular 
course  and  was  granted  by  the  court. 

Said  case  came  on  for  second  trial  thereof  on  the day 

of ,  19.  .  .  .,  in  the court  of  said 

county,  the  Honorable ,  judge,  then  and  there 

presiding.  A  jury  was  stricken,  evidence  was  introduced  for 
plaintiff  and  defendant,  and  after  argument  of  counsel  and  the 
charge  of  the  court  the  jury  rendered  a  verdict  in  favor  of  the 

plaintiff  in  the  sum  of dollars,  and  judgment  was 

duly  entered  thereon,  all  this  appearing  in  the  record. 

The  defendant  thereafter  in  regular  course  and  within  the 
time  prescribed  by  law  filed  its  motion  for  new  trial,  with  the 
brief  of  the  evidence  duly  approved  by  the  court  and  filed,  and 
the  charge  of  the  court  properly  certified.  Said  motion  came  on 

for  hearing  on  the day  of ,  19 .  .  .  . ,  and 

during  the  same  term  of  said  court,  and  the  recital  of  facts  in 
the  several  grounds  of  the  motion  were  approved,  and  the  said 
motion  was  by  the  court  overruled  on  each  and  all  of  the  grounds 
therein  stated. 

To  this  judgment  of  the  court  the  defendant  excepted,  and 
now  excepts,  and  assigns  error  thereon  as  being  contrary  to  law, 
and  says  that  the  court  erred  in  overruling  said  motion  for  new 
trial  on  each  and  all  of  the  grounds  therein  stated.  Defendant, 

,  names  himself  herein  as  plaintiff  in  error, 

and  he  names  the  plaintiff, ,  as  defendant  in 

error  in  this  bill  of  exceptions.  The  plaintiff  in  error  specifies 
the  following  portions  of  the  record  in  said  case  as  material  to 
a  clear  understanding  of  the  errors  in  this  bill  of  exceptions 
complained  of j  to  wit : 

1.  The  original  petition  in  said  case,  filed  on  the day 

of ,19 

2.  The  amendment  thereto,  certified  on  the day 

of ,19 ,  and  filed  on  the day  of , 

19 

3.  The  second  amendment  thereto,  filed  on  the day 

of .  . '. ,  19.  . .  .,  and  the  order  of  the  court  allowing 

the  same. 

4.  The  third  amendment,  allowed  on  the day  of 

,19 ,  and  filed  on  the day  of ,19 


688         PRACTICE  IN  SUPREME  COURT 

5.  The  motion  to  dismiss  said  case,  filed  on  the day 

of ,  19.  .  .  .,  and  the  order  of  the  court  thereon. 

6.  The  original  plea  and  answer  of  the  defendant,  filed  on 
the day  of ,  19 

7.  The  plea  and  answer  of  the  defendant  to  said  case  as 
amended,  allowed  on  the day  of ,  19 .... 

8.  The  exceptions  pendente  lite  of  the  defendant  to  the  order 
overruling  the  motion  to  dismiss  said  case,  certified  and  filed 

the day  of ,  19 .  .  .  . ,  and  the  certificate  and 

order  of  the  judge  thereto. 

9.  The  exceptions  pendente  lite  of  the  defendant  to   the 

allowance  of  the  amendment  of  date  the day  of , 

19.  .  .  .,  and  to  the  judgment  disallowing  the  plea  of  the  statute 
of  limitation  with  the  certificate  and  order  of  the  judge  thereto, 

dated  and  filed  the day  of ,  19.  .  .  .,  all  of 

said  exceptions  being  in  one  bill  filed  the day 

of ,19 

10.  The  motion  for  new  trial,  filed  by  defendant  on  the 

day  of ,  19 .  .  .  . ,  with  rule  nisi  and  service 

thereon. 

11.  The  brief  of  evidence  with  the  order  and  entries  thereon, 
filed  on  the day  of ,  19 .... 

12.  The  charge  of  the  court  with  the  approval  of  the  judge 

thereon,  dated  the day  of ,  19.  .  .  .,  and  filed 

on  the day  of ,  19.  ... 

13.  The  verdict  of  the  jury  rendered  in  said  case  on  the 
day  of ,19 

14.  The  judgment  of  the  court  on  said  verdict,  dated  the 
day  of ,19 

15.  The  judgment  of  the  court  certifying  the  ground  and 

overruling  said  motion  for  new  trial,  dated  the .  .  .day 

of ,19.... 

16.  The  entries  of  filing  of  each  and  all  of  the  parts  of  the 
record  above  specified  to  be  entered   and  transmitted  in  the 
proper  order. 

And  now  within  the  time  provided  by  law,  on  this  the 

day  of ,  19:  .  .  .,  and  within  thirty  days  of  the 

entry  of  the  judgment  overruling  said  motion  for  new  trial 
comes  the  plaintiff  in  error  and  tenders  this  his  bill  of  exceptions 
and  prays  that  the  same  may  be  certified  as  provided  by  law  in 


PRACTICE  IN  SUPREME  COURT  689 

order  that  the  errors  complained  of  may  be  considered  and  cor- 
rected by  the  Supreme  Court  of  Georgia  [or  the  Court  of 
Appeals,  as  the  case  may  be.] 

Attorneys  for  Plaintiff  in  Error. 
Post  office  address, 
,  Ga. 


BILL  OF  EXCEPTIONS  ON  REFUSAL  OF  MOTION  FOR  NEW  TRIAL. 


Georgia, County. 

Be  it  remembered  that  on  the day  of , 

19.  .  .  .,  there  came  on  to  be  heard  in  the  superior  court  of  said 
county,  and  during  the  regular  term  thereof,  before  the  Honora- 
ble   '. ,  judge  of  said  court,  then  and  there 

presiding,  the  case  of vs , 

the  same  being  an  action  of  complaint  then  and  there  in  said 
court  pending. 

Both  parties  having  then  and  there  announced  ready,  and  a 
jury  having  been  stricken  in  said  case,  the  plaintiff  introduced 
evidence,  the  defendant  introduced  evidence,  argument  was  had 
thereon,  and  the  court  charged  the  jury,  after  which  the  jury, 
having  retired  and  considered  said  case,  returned  a  verdict  in 
favor  of  the  plaintiff  for dollars  and  costs  of  suit. 

Be  it  further  remembered,  that  during  the  said  term  of  court, 
and  within  thirty  days  from  the  said  trial,  the  defendant  made 
a  motion  for  a  new  trial  in  said  case,  filed  his  brief  of  evidence 
therein  and  his  amended  motion,  all  of  which  was  approved  and 
certified  as  true  by  the  said  judge,  and  the  said  motion  for  a 

new  trial  was  regularly  continued  until  the day 

of ,  19.  .  .  .,  at ,  in  vacation,  at 

which  time  the  said  motion  coming  on  for  a  hearing  before  the 

said  presiding  judge,  the  Honorable ,  judge  of 

said  court,  when  and  whereupon,  after  argument  thereon,  the 
said  judge  overruled  said  motion  and  refused  to  grant  a  new 
trial  therein,  to  which  judgment  so  overruling  said  motion  the 
defendant  then  and  there  excepted,  and  now  excepts,  and  assigns 
said  ruling  and  judgment  as  error,  as  being  contrary  to  law,  and 
says  that  the  said  judge  should  have  granted  said  motion  upon 
each  and  all  of  the  grounds  therein  taken  and  set  out. 


690  PRACTICE  IN  SU-KKMI-;  COURT 

names  himself  herein  as  plaintiff  in  error, 

and  he  names ,  the  plaintiff  in  the  court  below, 

as  defendant  in  error  in  this  bill  of  exceptions. 

Plaintiff  in  error  comes  on  this  the day  of , 

19.  .  .  .,  and  within  the  time  prescribed  by  law,  and  presents  to 

the  Honorable ,  judge  of  said  court,  who 

presided  in  said  case,  this  his  bill  of  exceptions,  and  asks  that 
the  same  be  signed  and  certified  in  order  that  the  said  case  may 
be  carried  to  the  Court  of  Appeals  of  Georgia,  so  that  the  errors 
herein  alleged  to  have  been  committed  may  be  considered  and 
corrected.  Plaintiff  specifies  as  material  to  a  clear  understand- 
ing of  the  errors  complained  of,  the  following  portions  of  the 
record,  to  wit, — 

1st.  The  original  petition  filed  in  said  case  on  the day 

of ,  19 

2nd.  The  answer  of  the  defendant  thereto  filed  in  said  court 
on  the day  of .  . ,  19 .... 

3rd.  The  verdict  of  the  jury  and  the  judgment  rendered 
thereon  as  hereinbefore  set  out. 

4th.  The  motion  for  a  new  trial,  together  with  the  amend- 
ment thereto,  order  of  the  judge  thereon  allowing  the  same,  the 
acknowledgment  of  service  by  the  defendant,  and  the  entry  of 
filing  thereon. 

5th.  The  brief  of  the  evidence  filed  in  said  case,  together 
with  the  approval  of  the  judge  thereon,  making  it  a  part  of  the 
record  in  said  case,  dated  the day  of ,  19.  ... 

6th.  The  order  of  the  judge  overruling  said  motion  for  a 
new  trial  and  refusing  to  grant  a  new  trial  therein,  dated  the 
day  of ,19 

Plaintiff  in  error  most  respectfully  submits  this  his  bill  of 
exceptions. 


Attorneys  for  Plaintiff  in  Error. 
Post  office  address: 
.  Ga. 


CERTIFICATE  OF  JUDGE. 


I  do  certify  that  the  foregoing  bill  of  exceptions  is  true  and 
contains  all  of  the  evidence  and  specifies  all  of  the  record  ma- 
terial to  a  clear  understanding  of  the  errors  complained  of,  and 
the  clerk  of  the  superior  court  of county  is  hereby 


PRACTICE  IN  SUPREME  COURT         691 

directed  to  make  out  a  complete  copy  of  such  portions  of  the 
record  as  are  in  this  bill  of  exceptions  specified,  and  certify 

them  as  such,  and  cause  them  to  be  transmitted  to  the 

term  of  the  Court  of  Appeals,  in  order  that  the  errors  alleged  to 
have  been  committed  may  be  considered  and  corrected. 
This day  of ,,19 

Judge  of  Superior  Court. 


(NOTE:  Sometimes  a  judge  of  the  superior  court  holds  a  bill  of 
exceptions  beyond  the  time  in  which  it  should  be  certified.  For  this 
reason,  it  is  important  that  the  plan  followed  in  this  bill  of  exceptions 
should  be  considered.  Therein  is  set  out  the  date  that  it  was  pre- 
sented to  the  judge,  and  if  this  allegation  is  therein,  that  is,  "Now  comes 

the  plaintiff  in  error  on  this  the day  of 

19 and  presents  this  his  bill  of  exceptions,  and  within  the  time 

required  by  law,"  and  the  judge  signs  the  certificate  to  the  bill  of  ex- 
ceptions, that  is  an  end  to  the  entire  matter.  Of  course,  if  it  is  present- 
ed on  that  date  and  that  is  the  true  date  of  presentation,  the  judge  will 
and  should  sign  it  as  presented.  If  this  is  followed,  it  will  relieve  a 
great  deal  of  trouble  in  this  respect.) 


ACKNOWLEDGMENT  OF  SERVICE  ON  BILL  OF  EXCEPTIONS. 


Due  and  legal  service  is  hereby  acknowledged  on  the  within 
and  foregoing  bill  of  exceptions,  copy  and  all  other  and  further 
service  and  notice  is  hereby  waived. 

This day  of , ,  19 


Attorney  for  Defendant  in  Error. 


[NOTE:  It  is  important  in  getting  an  acknowledgment  to  a  bill  of  ex- 
ceptions, that  it  should  appear  for  whom  the  attorneys  signing  for  the 
defendant  in  error  acknowledged  service.  It  is  well  to  put  in  the 
acknowledgment  not  only  that  he  acknowledged  service,  for  the  de- 
fendant in  error,  but  who  the  defendants  in  error  are,  if  there  are 
more  than  one.] 


BILL  OF  EXCEPTIONS  WITHOUT  MOTION  FOB  NEW  TRIAL. 


Georgia, County. 


Plaintiff  in  Error 


vs. 


Defendant  in  Error  _ 


Supreme  Court  of  Georgia, 


.Term,  19 


692          PRACTICE  ix  SUPREME  COURT 

BILL  OF  EXCEPTIONS. 


Be  it  remembered :  in  the  case  of against 

,  returnable  to  the term,  19 .  .  .  . , 

of  the court  of ,  being  an  action  for 

the  court,  on  the day  of ,  19. . . .^  having 

allowed  an  amendment  to  the  petition  subject  to  objection,  and 

having  ordered  the  same  to  be  filed  on  the day  of 

,  19.  .  .  .,  passed  an  order  sustaining  the  demurrer  filed 

by  the  defendant  objecting  to  certain  parts  of  said  amendment. 

To  this  ruling  the  plaintiff  in  error  excepted,  now  excepts, 
and  assigns  the  same  as  error  upon  the  ground  that  it  was  con- 
trary to  law. 

Afterwards,  on  the  same  date,  to  wit,  on  the day 

of ,  19.  .  .  .,  the  plaintiff  in  error  presented  a 

paper  which  he  requested  that  the  court  should  allow  and  order 
filed  as  an  amendment  to  the  petition.  Upon  objection  of  the 
defendant,  the  court  declined  to  allow  said  paper  as  an  amend- 
ment. A  copy  of  same  is  hereto  attached  as  a  part  of  this  bill 
.of  exceptions,  and  is  marked  and  entered  as  "Exhibit  A." 

To  this  refusal  of  the  court  to  allow  said  paper,  the  plaintiff 
in  error  excepted,  and  now  excepts,  and  assigns  the  same  as 
error  upon  the  ground  that  said  refusal  was  contrary  to  law. 

After  said  rulings,  the  case  went  to  trial  regularly  on  its 
merits  with  submission  of  evidence  and  a  charge  of  court,  and 
a  verdict  was  rendered  for  the  defendant  and  judgment  entered 
thereon  on  the day  of ,  19.  ... 

Having  refused  to  allow  the  petition  to  be  amended  as  above 
recited,  and  such  rulings  being  controlling,  as  plaintiff  in  error 
contends,  which  entered  into  and  affected  the  further  progress 
and  final  result  of  the  case,  the  court  erred  in  permitting  said 
verdict  to  be  rendered  and  said  judgment  to  be  entered. 

To  the  action  of  the  court  in  permitting  said  verdict  to  be 
rendered  and  said  judgment  to  be  entered,  the  plaintiff  in  error 
excepted,  and  now  excepts,  and  assigns  the  same  as  error  upon 
the  ground  that  same  Was  contrary  to  law,  and  that  the  court 
having  refused  the  petition  to  be  amended,  and  such  refusal  as 
plaintiff  in  error  contends  being  controlling  in  effect,  the  said 
verdict  and  judgment  could  not  be  and  are  not  a  legal  termina- 
tion of  the  case. 

The  plaintiff  in  error  specifics  as  material  to  a  clear  under- 
standing of  the  errors  complained  of  the  following  portions  of 
the  record,  to  wit : 


PRACTICE  IN  Si  I-I:KMK  COURT  693 

1.  The  petition  [omitting  process  and  service]. 

2.  The  amendment  allowed  the.  .  .  .day  of ,  19.  ... 

3.  The  demurrer  to  said  amendment. 

4.  The  amendment  allowed  the.  .  .  .day  of ,  19 .... 

And  now  comes  plaintiff  in  error,  within  the  period  allowed 

by  law,  and  presents  this  his  bill  of  exceptions,  and  prays  that 
the  same  may  be  signed  and  certified  in  order  that  the  errors 
complained  of  may  be  considered  and  corrected. 
This ..day  of ,  19 

Attorney  for  Plaintiff  in  Error. 
Post  office  address, 
,  Ga. 


"Exhibit  A." 

Attach  it  and  follow  with  judge's  order  identifying,  as  fol- 
lows : 


IDENTIFICATION  OF  EXHIBIT  BY  JUDGE. 


The  foregoing  "Exhibit  A,"  contained  on  foregoing  —  pages 
is  hereby  identified  as  a  correct  copy  of  the  amendment  tendered 
by  the  plaintiff  and  rejected  by  the  court  as  set  forth  in  the  bill 
of  exceptions. 

This day  of ,19 

Judge. 


[See  Lyndon  vs.  Georgia  Railway  &  Electric  Company,  129  Ga.  353  (58 
S.  E'.  1047). 

This  was  an  action  for  damages  for  personal  injuries  to  a  passenger 
in  a  street  car,  alleging  that  the  railway  company  was  negligent  in 
failing  to  provide  him  with  a  seat  so  that  he  was  compelled  to  stand. 
The   amendment    complained    that    plaintiff   was    not    furnished    wit! 
equal  accommodations  with  the  other  passengers,  and  being  compell 
to  stand  holding  on  to  the  backs  of  benches  for  support  he  was  thereby 
in  a  position  less  able  to  resist  the  jerking  of  the  car,  than  passenger: 
seated,  etc.,  etc.] 

BILL  OF  EXCEPTIONS  UPON  GRANT  OF  INJUNCTION. 


Georgia, County. 

Be  it  remembered  that  on  the day  of 

19 ,  there  came    on  to  be  heard  before  the  Honorable. 


694  PRACTICE  IN  SUPREME  COURT 

,  Judge  of  the  Superior  Court  of  the 

circuit,  of  which  said  county  forms  a  part,  the  case  of 

vs ,  the  same  being  an  application  on  the  part  of 

the  plaintiff  for  an  injunction  against  the  defendant. 

The  defendant  having  been  served  and  having  filed  an  answer 
in  said  case,  and  both  parties  having  announced  ready,  the 
plaintiff  introduced  evidence  in  support  of  his  petition,  and  the 
defendant  introduced  evidence  to  support  his  answer,  and  after 
argument  had  thereon,  the  said  judge  then  and  there  presiding 
passed  an  order  granting  said  injunction  and  enjoining  the  de- 
fendant, as  prayed  in  said  petition,  to  which  judgment  granting 
said  injunction  and  enjoining  the  defendant  the  plaintiff  in 

error  in  this  bill  of  exceptions, ,  then  and. 

there  excepted,  and  now  excepts,  and  assigns  the  same  as  error 
as  being  contrary  to  law,  and  says  that  the  said  judge  then  and 
there  should  have  refused  said  injiinction. 

names  himself  as  plaintiff  in  error,  and 

,  as  defendant  in  error,  in  this  bill  of 

exceptions. 

Plaintiff  in  error  sets  out  next  hereinafter  the  evidence  ad- 
duced on  said  hearing,  to  wit, — 

The  plaintiff  read  in  evidence  the  affidavit  of  John  Jones, 
the  material  portion  of  which  read  as  follows:  (Here  insert 
the  evidence  of  the  witness  as  he  stated  it  in  the  affidavit.  Set 
it  out  fully  and  at  length  and  set  out  in  this  way  the  evidence 
from  the  affidavits  of  any  other  witnesses,  leaving  out  the  formal 
parts). 

The  defendant, ,  read  in  evidence  the 

affidavit  of ,  the  material  parts  of  which  are 

as  follows:  (Here  set  out  the  evidence  of  the  witness  and  any 
other  evidence  that  was  placed  before  the  court  by  the  defendant. 
Set  the  evidence  out  exact  and  complete,  leaving  out  the  formal 
parts  of  affidavits.) 

Plaintiff  in  error  comes  now  on  the day  of , 

19.  .  .  .,  and  presents  to  his  Honor,  the  Honorable , 

Judge,  who  presided  in  said  case,  this  his  bill  of  exceptions,  the 
same  being  within  twenty  days  from  the  granting  of  said  injunc- 
tion and  within  the  time  prescribed  by  law,  and  asks  that  the 
same  be  signed  and  certified  according  to  the  statute  in  such  case 
made  and  provided,  in  order  that  said  case  may  be  carried  to  the 
Supreme  Court  of  Georgia,  that  the  errors  therein  set  out  and 
alleged  may  be  considered  and  corrected  by  that  court. 


PRACTICE  IN  SUPREME  COURT         695 

Plaintiff  in  error  specifies  as  material  to  a  clear  understand- 
ing of  the  errors  complained  of,  the  following  portions  of  the 
record,  to  wit, — 

1st.  The  original  petition  filed  by  plaintiff  in  said  case  on 
the day  of ,19 

2nd.  The  answer  of  the  defendant  thereto  filed  in  said  court 
on  the day  of ,  19.  ... 

3rd.  The  order  and  judgment  of  the  court  granting  said 

injunction,  which  was  made  on  the day  of , 

19.... 

Plaintiff  in  error  most  respectfully  submits  this  his  bill  of 
exceptions. 

Attorney  for  Plaintiff  in  Error. 
Post  office  address: 
,  Ga. 


DISMISSAL  OF  PETITION  ON  ORAL  MOTION. 


Defendant  then  moved  orally  to  dismiss  plaintiff's  declara- 
tion upon  the  ground  that  the  same  failed  to  set  out  any  cause 
of  action,  which  motion  the  court  allowed,  and  dismissed  plain- 
tiff's case,  to  which  ruling  sustaining  said  motion  to  dismiss 
plaintiff's  declaration  and  passing  said  order  of  dismissal  the 
defendant  excepted,  and  now  excepts,  and  assigns  the  same  aa 
error,  as  being  contrary  to  law. 


JUDGE'S  CERTIFICATE  TO  BILL  OF  EXCEPTIONS.     §6145. 


I  do  certify  that  the  foregoing  bill  of  exceptions  is  true,  and 
contains  [or  specifies,  as  the  case  may  be,]  all  the  evidence,  and 
specifies  all  of  the  record  material  to  a  clear  understanding  of 

the  errors  complained  of ;  and  the  clerk  of  the court 

of county  is  hereby  ordered  to  make  out  a  com- 
plete copy  of  such  parts  of  the  record  in  said  case  as  are  in  this 
bill  of  exceptions  specified,  and  certify  the  same  as  such,  and 

cause  the  same  to  be  transmitted  to  the term  of  the 

Supreme  Court  (or  Court  of  Appeals,  as  the  case  may  be),  that 
the  errors  alleged  to  have  been  committed  may  be  considered 
and  corrected. 

This day  of ,  19 

'j.'s.c..  ..o. 


696  PRACTICE  ix  SUPREME  COURT 

EXCEPTIONS  PENDENTE  LITE.    §6154. 


Georgia, County. 

No. 


vs. 


In Court, 

Tried   at Term,   19 


Be  it  remembered  that  in  said  court  during  said  term  said 

case  came  on  to  be  heard  before  the  Honorable , 

Judge  of  the  said  Court,  then  and  there  presiding,  and  during 
the  trial  of  said  case  and  before  final  judgment  therein  the 
question  arose 

when  and  whereupon  the  said  Judge  decided  that 


,  which  said  decision  was  averse 

to  and  against  the  contentions  of ,  to  which 

ruling  and  decision  of  the  court 

then  and  there  excepted,  and  now  excepts,  and  assigns  said 
ruling  and  decision  as  error  as  being  contrary  to^faAv,  and  as 

said  matter  does  not  appear  of  record, ,  within 

the  time  prescribed  by  law,  tenders  these  exceptions  pendente 
lite,  and  prays  that  the  same  may  be  certified  according  to  the 
statute  in  such  case  made  and  provided,  to  become  a  part  of  the 
record  in  said  case. 

tenders  these  exceptions  on  this 

the day  of ,  19 


\ttorneys  for, 


In  Superior  Court Term,  19.  ... 

The  foregoing  exceptions,  being  tendered  within  the  time 
prescribed  by  law,  are  hereby  allowed  and  certified  to  be  true, 
and  the  clerk  of  this  court  is  hereby  ordered  to  place  the  same 
on  the  record,  and  that  the  same  become  a  part  of  the  record 
in  said  case.  This day  of ,  19.  ... 

Judge  of  the Court. 


PRACTICE  IN  STI-KKME  COURT  <;'.»7 

CLERK'S  CERTIFICATE  TO  BILL  OF  EXCEPTIONS.     §6226. 


Georgia,   County. 

Clerk's  Office, Court  of County, 

Ga.,  the. .  .day  of ,  19.  .  . 

I  do  hereby  certify  that  the  foregoing  pages  of  printing  and 
writing  is  the  true  original  bill  of  exceptions  filed  in  this  office 

in  the  case  of ,  plaintiff  in  error,  vs , 

defendant  in  error,  a  copy  of  which  is  now  of  file  in  my  office. 

This day  of ,19 

Witness   my   signature    and   the   seal   of   said   court   hereto 
affixed,  the  day  and  year  above  written. 


[SEAL]  Clerk Court County. 


ACKNOWLEDGMENT  OF  SERVICE. 


Due  and  legal  service  of  the  within  bill  of  exceptions  is  hereby 
acknowledged,  copy  and  all  other  and  further  notice  and  service 
waived.  This day  of ,  19 .... 


Attorneys  for ,  Defendant  in  Error. 

Postoffice  address, ,  Ga. 


CLERK'S  ENTRY  OF  TIME  OF  FILING. 


Georgia, County. 

Clerk's  Office, Court. 

Filed  in  office  this day  of ,  19 .... 

"Clerk. 


Amendment  of  bill  of  exceptions,  adding  new  assignment  of  error  to 
motion  for  new  trial  can  not  be  made  in  Supreme  Court.  121/135 
(48  S.  E.  904).  Adding  new  parties,  124/165  (52  S.  E.  65).  Cor- 
recting misnomer  of  party.  121/518  (49  S.  E.  595).  Change  of 
date  in  judge's  certificate  not  allowed.  127/281  (56  S.  E.  453). 

Certification.  Bill  of  exceptions  must  be  positively  certified  as  true. 
Where  certificate  is  that  "foregoing  bill  of  exceptions  is  approxi- 
mately true,"  it  will  be  dismissed.  145/356  (89  S.  E'.  333).  State- 
ment that  certain  exceptions  pendente  lite  were  duly  certified  by 
court,  and  duly  filed  and  entered  on  the  minutes  of  the  court,  must 
be  accepted  as  true.  13  App.  148  (1)  (78  S.  E.  1108).  Where  bill 
is  duly  and  regularly  certified  according  to  law,  additional  certifi- 


698  PRACTICE  IN  SUPREME  COURT 

cate  will  be  ignored  and  treated  as  surplusage.  13  App.  118  (1)  (78 
S.  E.  852).  Bill  will  not  be  dismissed  because  judge  certified  that 
it  was  "due,"  instead  of  "true,"  this  being  a  clerical  error.  13 
App.  9  (1)  (78  S.  E.  682).  Date  of  judge's  certificate  will  be  pre- 
sumed to  be  date  on  which  it  was  tendered  to  him,  where  it  does 
not  affirmatively  appear,  from  bill  of  exceptions  or  from  certificate, 
that  it  was  tendered  on  a  different  date.  16  App.  30  (84  S.  E.  486). 
Certificate  that  bill  of  exceptions  is  true  "except  that  it  fails  to 
show,"  etc.,  is  not  sufficient.  18  App.  211  (89  S.  E.  162). 

"Et  al."  Where  motion  to  set  aside  judgment  was  filed  by  two  per- 
sons, and  in  bill  of  exceptions  to  overruling  of  motion  one  of 
plaintiffs  in  error  is  named  and  other  is  designated  merely  as 
"et  al.,"  in  absence  of  motion  to  amend  bill  of  exceptions  writ  of 
error  will  be  treated  as  having  been  sued  out  only  by  person  named, 
and  designation  of  other  party  as  "et  al."  will  be  disregarded.  14 
App.  257  (1)  (80  S.  E.  674). 

Record.  Bill  of  exceptions  will  not  be  dismissed  on  ground  that  too 
much  of  record  was  specified  and  brought  up.  17  App.  49  (86 
S.  E.  91). 


CERTIFICATE  OF  CLERK  TO  TRANSCRIPT  OF  RECORD.     §6226. 


Georgia, County. 

Clerk's  Office, Court  of County. 

I  hereby  certify  that  the  foregoing pages  contain  a 

true  transcript  of  such  parts  of  the  record  as  are  specified  in 
the  bill  of  exceptions  and  required  by  the  order  of  the  presiding 

judge  to  be  sent  to  the  Supreme  Court  in  the  case  of 

,  plaintiff  in  error,  vs , 

defendant  in  error. 

I  further  certify  that  the term  of  said  court,  at 

which  said  case  was  tried,  adjourned  on  the day 

of ,  19 ....     All  of  which  appears  from  the  records 

and  minutes  of  said  court. 

Witness  my  signature  and  the  seal  of  said  court  affixed  this 
the day  of ,  19 


[SEAL]  Clerk Court  of. 


SUPERSEDEAS  BOND  IN  ClVTL  CASE.      §6165    (1). 


Georgia, County. 

}In  Superior  Court  of County, 
term,   19.  ...      Motion 
for  a  new  trial  and  the  same 
overruled. 
Whereas,  the  motion  for  a  new  trial  in  the  above  named  and 


PRACTICE  IN  SUPREME  COURT  699 

stated  case  having  been  overruled,  and ,  as 

plaintiff  in  error,  having  presented  to  the  Honorable , 

Judge  of  the  Superior  Court  who  presided  in  said  case,  a  bill 
of  exceptions  which  has  been  signed  and  certified,  now,  on  and 
before  the  filing  of  said  bill  of  exceptions  with  the  clerk  of  the 

Superior  Court,  comes ,  the  said  plaintiff  in 

error,  as  principal,  and ,  as  security,  and  they 

hereby  acknowledge  themselves  jointly  and  severally  bound  unto 

,  the  said  defendant  in  error  in  said  bill  of 

exceptions,  his  heirs  and  assigns,  for  the  eventual  condemnation 
money  in  said  case  and  all  subsequent  costs.  Signed  with  our 

hands  and  sealed  with  our  seals,  this day  of , 

19.... 

Principal    (L.  S.) 

Security      (L.  S.) 

Executed  in  the  presence  of  and  approved 

by .• 

Clerk  Superior  Court. 
Now,  on  and  before  the  filing  of  the  bill  of  exceptions  in  the 

case  wherein  the  above  bond  is  made  and  given,  I, , 

clerk  of  the  Superior  Court,  hereby  acknowledge  receipt  of  all 
the  costs  that  have  accrued  in  said  case,  and  in  the  case  wherein 

said  motion  for  a  new  .trial  was  made.     This day 

of - ,  19.... 

Clerk  of  Superior  Court. 


SUPERSEDEAS  BOND  IN  CRIMINAL   CASE. 


Georgia, County. 

Indictment  for ,  in court 

of county. 

The  defendant, ,  having  tendered  a  bill  of 

exceptions  to  the  decisions  and  judgment  of  the  court  on  the 

trial  of  the  above  stated  case,  now  brings as 

his  security.  And  the  said ,  principal,  and 

,  security,  do  hereby  acknowledge  themselves 

held  and  bound  unto  His  Excellency, ,  Governor 


700  PRACTICE  IN  SUPREME  COURT 

of  said  State,  and  his  successors  in  office,  in  the  sum  of 

dollars,  subject  to  the  following  conditions : 

The  condition  of  the  above  obligation  is  as  follows : 

If  the  said ,  defendant,  shall  be  present  in 

person,  to  abide  the  final  order,  judgment  and  sentence  of  said 

court,  in  said  cause,  then  this  obligation  to  be  void;  otherwise 

of  force. 

This day  of ,  19 

,  Principal   [L.  S.] 

,  Security     [L.  S.] 

Executed  in  the  presence  of  and  approved 
by  me,  this ....  day  of ,  19 .... 


Clerk Court County. 


PAUPER  AFFIDAVIT  IN  LIEU  OF  BOND  IN  CIVIL,  CASE. 
§6165  (2). 


vs. 


Georgia, County. 

In  Superior  Court  of 

County, Term,  19 

•     Motion  for  a  new  trial  and  order 

and    judgment    overruling    the 

same. 

Personally  came  before  the  undersigned  attesting  officer,  who 

by  law  has  authority  to  administer  an  oath, , 

the  subscriber,  who,  being  duly  sworn,  on  oath  says  that  he  is 
the  movant  in  the  above  named  and  stated  motion  which  has 

been  overruled  by  the  Honorable ,  Judge  of 

the  Superior  Court,  and  that  he  has  •  presented  to  said  Judge 
and  gotten  him  to  certify  and  sign  the  bill  of  exceptions  therein, 
carrying  the  case  to  the  Court  of  Appeals  of  said  State,  and 
affiant  now,  on  and  before  the  filing  of  said  bill  of  exceptions 
therein,  makes  and  files  this  his  affidavit  for  the  purpose  of 
obtaining  a  supersedeas  in  said  case,  and  on  oath  says  that  he 
is  unable  from  his  poverty  to  pay  the  costs  or  give  the  security 
for  the  eventual  condemnation  money  in  said  case,  and  that  his 


PKACTICE  IN  SUPREME  COUET  701 

counsel  has  advised  him  that  he  has  good  cause  for  a  writ  of 
error. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


Clerk  Superior  Court. 


SUPEESEDEAS. 

(State  the  case.) 
Georgia, County. 

To  the  Clerk  of  the Court,  and  the  Sheriff  of 

County : 

The  defendant  having  tendered  a  bill  of  exceptions,  in  the 
above  stated  cause,  which  has  been  allowed  and  signed;  there- 
fore, we  command  you  that  you  wholly  cease  from  any  further 
proceedings  whatsoever  in  relation  to  said  cause,  until  further 
orders. 

Given  under  my  hand  and  official  signature,  this day 

of ,19.... 

Judge Court County. 


JUDGMENT  ON  REMITTITUE. 


r  In  the  Superior  Court, 


County, Term,  19 

The  above  named  and  stated  case  having  been  carried  to  the 
Supreme  Court  by  a  writ  of  error,  and  after  a  hearing  therein, 
the  judgment  of  this  court  having  been  affirmed,  it  is  considered, 
ordered  and  adjudged  that  the  judgment  of  the  Supreme  Court 
be  made  the  judgment  of  this  court,  and  that  the  judgment  of 
this  court  stand  affirmed,  and  judgment  is  hereby  rendered  on 

the  supersedeas  bond  against ,  principal,  and 

,   security,   for dollars,   principal, 

and dollars,  interest  to  judgment,  with  interest 


702  PRINCIPAL  AND  AGENT 

on  the  principal  from  this  date,  at per  cent,  per 'annum, 

and dollars,  costs.     Let  execution  issue  accord- 
ingly.    This day  of ,  19.  ... 

Judge  Superior  Court. 


PKINCIPAL  AND  AGENT.    §§3569-3614. 


POWER  OF  ATTORNEY. 


Georgia, County. 

Know  all  men  by  these  presents :     That  I, , 

have  constituted,  made  and  appointed,  and  by  these  presents  do 

make,  constitute  and  appoint ,  of  said  State 

and  county,  my  true  and  lawful  attorney  in  fact,  for  me  in  my 
name,  place  and  stead,  to  (set  out  fully  and  explicitly  the  thing 

intended  to  be  done),  giving  and  granting  unto , 

said  attorney,  full  and  complete  power  and  authority  in  and 
about  the  premises;  and  generally  to  do  and  perform  all  and 
every  act  and  acts,  thing  and  things,  device  and  devices,  in  the 
law  whatsoever  needful  and  necessary  to  be  done  in  and  about 

the  premises,  and  for and  in 

name  to  do,  execute  and  perform,  as  largely  and  amply,  to  all 

intents  and  purposes,  as might  or  could  do  if 

were  personally  present  hereby  ratifying  and  con- 
firming all  that ,  said  attorney,  or  substitute 

shall  lawfully  do  by  virtue  hereof. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal 

the day  of ,  19 

[SEAL] 

Signed,  sealed  and  delivered  in  the  pres- 
ence of 


J.  P. 


Amendment  of  declaration  by  striking  "agent"  after  defendant's  name. 

1  App.  265  (57  S.  E.  916). 
Contract  by   one   signing  as   agent,   without  more,    is   his   individual 

undertaking.     1  App.  265   (57  S.  E.  916);   145/323    (89  S.  E1.  218). 

Contract  made  by  agent,  prima  facie  binding  on  principal,  though 

signed  in  individual  name  of  agent.    127/109  (56  S.  E.  106). 


PROCESS  AND  SERVICE  703 

Descriptio    personae,    "as   agent   of,"    etc.      122/423    (50    S.    E.    119); 

127/438    (56  S.  E.   631). 
Note  signed  by  agent  with  his  name  alone,  "agent"  added,  is  his,  not 

principal's  obligation:  rule  and  exception.    127/438  (56  S.  E.  631). 


PROCESS  AND  SERVICE.     §§5551-5573. 


PROCESS.     §5552. 


Georgia, County. 


vs. 


>  Complaint. 


To  the  Sheriff  of  said  County,  or  his  Deputy,  Greeting: 

The  defendant, ,  is  hereby  required,  per- 
son ally  or  by  attorney,  to  be  and  appear  at  the court, 

to  be  held  in  and  for  said  county,  on  the  first  Monday  in 

,  19 .  . .  . ,  then  and  there  to  answer  the  plaintiff's 

complaint,  to  which  this  process  is  annexed,  as  in  default  thereof 
said  court  will  proceed,  as  to  justice  shall  appertain. 

Witness  the  honorable ,  judge  of  said  court, 

this day  of ,19 

,  Clerk. 


ENTRY  OF  SERVICE — PERSONAL.     §5563. 


Georgia, County. 

I  have  this  day  served  the  defendant,   

personally  with  a  copy  of  the  within  petition  and  process. 

This..' day  of ,  19 


Deputy  Sheriff. 


ENTRY  or  SERVICE  BY  LEAVING  COPY. 


Georgia, County. 

I  have  this  day  served  the  defendant, ,  by 


704  PROCESS  AND  SERVICE 

leaving  a  copy  of  the  within  writ  and  process  at  his  residence. 
This day  of ,  19 

Sheriff. 


SERVICE  ON  CORPORATION.     §§2258-2261. 


Georgia, County. 

Served  the  defendant,   ,  a  corporation, 

by  serving  personally ,  the  president  of  said 

corporation,  with  a  true  copy  of  the  within  writ  and  process 
this day  of ,  19.  ... 

Sheriff. 
— OK— 

Georgia, County. 

Served  the  defendant, .  .  . ,  a  corporation, 

by  leaving  a  true  copy  of  the  within  writ  and  process  at  the 
place  of  transacting  the  usual  and  ordinary  public  business  of 
said  corporation,  in county,  Georgia. 

This. day  of ,  19 

Sheriff. 


ENTRY  OF  SERVICE  ON  MINOR.     §5565. 


Georgia, .  County. 

I  have  this  day  served  the  defendant,   ,  a 

minor,  Avith  a  copy  of  the  within  petition  and  process  by  deliver- 
ing said  copy  to  said  minor  personally. 

This ,day  of ,  19 

.  Sheriff. 


GUARDIAN  AD  LITEM,  ORDER  APPOINTING.     §5565. 


It  appearing  to  the  court  that a  minor,  has 

been  personally  served  with  a  copy  of  the  petition  and  process 
in  the  above  stated  case,  and  that  he  has  no  regular  guardian, 


PROCESS  AXD  SERVICE  705 

it  is  ordered  that  ....................  be,  and  he  is,  hereby 

appointed  guardian  ad  litcm  for  said  minor  in  said  case. 
This  ......  day  of  ............  ,  19  ____ 


J.S.C. 


AGREEMENT  or  GUARDIAN  AD  LITEM  TO  SERVE.     §5565. 


I,   ,  hereby  agree  to  serve  as  guardian  ad 

litem  for ,  pursuant  to  the  foregoing  appoint- 
ment.    This day  of ,  19.  ... 


ORDER  FOR  SERVICE  BY  PUBLICATION.    §5554. 


It  appearing  to  the  court  that ,  the 

defendant  named  in  the  foregoing  petition,  resides  out  of  the 
State  of  Georgia,  and  it  is  necessary  to  perfect  service  on  him  by 
publication,  it  is  ordered  that  service  be  perfected  by  publica- 
tion twice  a  month  for  two  months  in  the  paper  in  which  the 
sheriff's  advertisements  are  printed. 

This day  of ,  19 

'j.'s'c.'.  ..d 


CITATION  BY  CLERK. 


•)  In  the  Superior  Court  of 

vs.  County,   Term,  19 .... 

\       Petition  for  equitable  relief. 

To ,  defendant : 

You  are  hereby  commanded .  to  be  and  appear  at  the  next 
term  of  the  Superior  Court  of  said  county,  to  be  held  on  the 

Monday  in ,  19 ,  and  make 

your  answer  in  the  above  named  and  stated  case,  as  required  by 
the  order  of  said  court. 

Witness  the  Honorable ,  Judge  of  the 

Superior  Court,  this day  of ,  19.  ... 

f .  . 

Clerk  of  Superior  Court. 


706  PROCESSIONING 

Acknowledgment  of  service  may  be  made  before  declaration  or  petition 
is  filed;  where  issue  of  second  original  and  process  is  waived,  not 
necessary  that  acknowledgment  of  service  be  written  upon  second 
original.  17  App.  578  (87  S.  EL  842). 

Amendment  of  entry  of  service  showing  that  officer  had  served  G.  per- 
sonally with  a  copy,  etc.,  so  as  to  show  that  service  was  on  the  S. 
Lumber  Company  by  serving  G.,  the  general  manager,  was  not 
error.  140/569  (79  S.  E.  462).  See  13  App.  14  (78  S.  E.  687).  An 
irregularity  in  the  direction  of  the  process  of  a  suit  is  amendable. 
18  App.  448  (89  S.  E.  536).  Amendment  allowed  here  in  order  to 
remove  equivocal  features  and  give  symmetry  to  the  record. 
143/490  (85  S.  E.  705).  Where  return  of  service  is  merely  ir- 
regular or  incomplete,  it  is  amendable  and  should  be  treated  merely 
as  defective  proof  of  service.  16  App.  783  (86  S.  E.  464). 

Definition.     Process,  in   broad  sense,   includes  means   whereby   court 

compels  appearance  of  defendant  before  it  or  compliance  with  its 

demands,  and  in  fact  includes  any  and  every  writ,  rule,  order, 

•    notice,  or  decree  that  may  issue  in  or  upon  any  action,  suit,  or 

legal  proceeding.    15  App.  329,  331  (83  S.  E1.  198). 

Dismissal.  Where  numerous  defendants  appeared  and  answered,  the 
court  properly  refused  to  dismiss  the  entire  suit  because  process 
was  defective.  143/224  (84  S.  E.  547). 

Return.  Where  service  is  denied,  officer's  return  must  be  traversed 
and  officer  made  a  party.  16  App.  448,  449  (85  S.  E.  613). 

Service.  Defendant  is  not  bound  by  judgment,  where  he  has  not  been 
served  with  process  directed  to  him,  unless  he  has  by  express  or 
implied  waiver  dispensed  with  necessity  for  process.  16  App.  574 
(85  S.  E.  819).  Omission  of  word  "usual"  from  entry  as  to  service 
by  leaving  copy  at  defendant's  "most  notorious  place  of  abode," 
was  not  fatal,  though  used  in  statute  governing  service.  17  App. 
409  (87  S.  E.  147).  Statute  should  be  construed  to  require  per- 
sonal service,  unless  contrary  in  intention  plainly  appears. 
123/319  (51  S.  E.  416). 

Signature  of  clerk's  assistant,  not  his  deputy,  irregular,  not  void. 
126/132  (54  S.  E,  959). 


PROCESSIONING.     §§3817-3826. 


PETITION.     §3818. 


Georgia, County, 

To ,    ,   and , 

Processioners  of  the District  of  said  County : 

The  petition  of shows  that  he  is  the  owner 

of  lot  of  land,  No in  the district 

and section  of  said  county,  'and  in  the 

militia  district  of  said  county,  and  that  the  line  on  the  west  of 

said  lot  between  petitioner  and ,  who  is  the 

adjoining  land  owner,  is  in  dispute,  and  that  the  line  on  the 


PROCESSIONING  707 


north  side  of  said  lot  between  petitioner  and , 

the  adjoining  landowner,  is  in  dispute,  and  petitioner  asks  that 
said  disputed  line  be  surveyed  and  marked  anew  by  you  as 
processioners  with  the  county  surveyor.  Petitioner  says  that 

and ,  adjoining  landowners, 

are  residents  of  said  county  and  State.  Petitioner  asks  that 
you  fix  a  day  to  trace  and  mark  said  lines  after  the  giving  of 
ten  days'  notice,  as  required  by  law,  to  said  adjoining  land- 
owners. 

Petitioner. 


NOTICE  TO  ADJOINING  LANDOWNERS.    §3818. 


Georgia, County. 

To and ,  residents  of  Georgia : 

The  petition  of filed  with  us  shows  to  us 

that  he  is  the  owner  of  lot  of  land,  No. .  * in 

the district  and section  of  said 

county,  and  lying  in  the militia  district  of  said 

county,  and  that  you  are  the  adjoining  landowners  thereto  and 
that  the  lines  around  said  lot  of  land  on  the  west  and  north  are 
in  dispute,  and  asks  us  as  processioners  with  the  county  surveyor 
to  trace  and  mark  said  lines  anew.  You  will  take  notice  that 
we,  or  a  majority  of  us,  with  the  county  surveyor,  will  proceed 
to  trace  and  mark  anew  said  lines  as  prayed  for  in  said  petition 

on  the day  of ,  19.  . .  .,  at. . .  .o'clock,  A.  M. 

This day  of ,  19 


Commissioners. 


AFFIDAVIT  OF  SERVICE. 


Georgia, County. 

Before  me, ,  an  officer  authorized  to 

administer  an  oath,  personally  came ,  who, 

being  duly  sworn,  on  oath  says  that  on  the day  of 

,  19 .  . .  . ,  he  served and 


708  PROCESSIONING 

each  personally  with  a  notice,  a  copy  of 

which  is  hereto  attached. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,   19 v 

' ,J.P. 


RETURN  OF  PROCESSIONERS.    §3825. 


Georgia, County. 

To ,  Ordinary  of  said  County : 

The  undersigned  processioners  for  the district, 

G.  M.,  of  said  county,  having  been  applied  to  by , 

the  owner  of  lot  of  land,  ~No in  the district 

and section  of  said  county,  to  trace  and  mark 

anew  the  lines  on  the  west  and  north  sides  of  said  lot  of  land, 

did  appoint  the day  of ,  at  ten  o'clock, 

A.  M.,  19.  . .  .,  as  the  time  to  trace  and  mark  said  lines  pur- 
suant to  law,  and  then  and  there  it  being  made  to  appear  that 
ten  days'  written  notice  of  the  time  and  place  had  been  given  to 

and ,  the  adjoining  landowners 

on  the  west  and  north  of  said  lot  of  land,  each  on  the 

day  of ,  19.  .  .,  at  ten  o'clock,  A.  M.,  with  the  county 

surveyor  did  proceed  to  trace  and  mark  anew  said  disputed 
lines,  and  as  our  finding  and  return,  we  hereto  attach  a  plat 
made  by  said  surveyor  and  duly  certified,  which  properly  repre- 
sents the  service  made  and  the  lines  traced  and  marked  anew  by 
us  and  said  surveyor.  This  the day  of ,  19.  ... 


Commissioners. 
(Hereto  attach  the  "plat  made  by  the  surveyor.) 


CERTIFICATE  OF  SURVEYOR. 


Georgia, County. 

I, ,  county  surveyor  of  said  county,  do 

certify  that  the  plat  hereto  attached  correctly  represents  the 

survey  of  the  lands  of }  and  the  courses  and 

distances  of  the  lines  marked  by  processioners  of  the 


PROCESSIONING  709 

district,  G.  M.,  of  the  said  county  under  my  service  made  on 

the day  of ,  19.  .  .  .,  which  is  referred  to 

in  the  return  of  the  processioners. 

Witness  my  hand  and  official  signature,  this  the day 

of ,  19 

County  Surveyor. 


PROTEST  TO  RETURN  OF  PROCESSIONERS.    §3823. 


Georgia, County. 

To ,  Ordinary  of  said  County : 

Comes  now on  this  fhe day 

of '. ,  19 .  .  .  . ,  and  states  as  true  the  following  facts : 

That  on  the day  of ,19 , ,, 

,  and ,  processioners  of 

the district,  G.  M.,  of  said  county,  after  having 

given  me,  as  an  adjoining  landowner,  ten  days'  notice  in  writing 
of  their  intention,  as  such  processioners  with  the  county  surveyor, 
to  trace  and  mark  anew  the  line  on  the  west. side  of  lot  of  land, 

No ,  in  the district  and 

section  of  said  county,  owned  by ,  and  upon 

his  application  proceeded  to  trace  and  mark  anew  said  line  on 
said  west  side  of  said  lot  of  land,  I  being  the  adjoining  land- 
owner thereto,  traced  and  marked  said  line  by  starting  at  a  stone 
corner  in  the  southwest  corner,  and  they  traced  and  marked  a 
straight  line  from  said  point  to  a  certain  stone  corner  at  the 
northwest  corner  of  said  lot  of  land,  and  I,  as  such  adjoining 
landowner,  file  this  my  protest  to  said  line,  and  say  that  the 
same  is  not  the  right  and  true  line  between  said  lot  of  land  and 
my  adjoining  land  on  the  west,  for  the  reason  that  there  is  a 
fence  one  rod  to  the  east  of  said  southwest  corner  from  which 
said  processioning  started  said  line  so  traced  and  marked  anew, 
and  that  said  fence  runs  due  north  one  rod  to  the  east  of  said  line 
so  traced  to  a  point  on  the  north  side  one  rod  east  of  the  stone 
corner  which  said  processioners  have  made  as  the  north  end  of 
said  line  between  said  lot  of  land  and  my  adjoining  land,  and 
this  protestant  shows  that  the  said  one  rod  of  land  to  the  east 
of  said  line  so  traced  and  marked  anew  extending  across  said 
lot  of  land  has  been  in  the  open,  actual,  notorious  and  exclusive 
possession  of  this  protestant  for  more  than  seven  years  previous 
tc  the  marking  and  tracing  of  said  line  and  has  been  cultivated 


710  PROMISSORY  NOTES,  ETC. 

by  this  protestant  up  to  said  fence  during  said  time,  and  that 
said  fence  is  the  true  line  between  the  said  lot  of  land  and  the 
adjoining  lands  on  the  west  owned  by  protestant,  and  this  pro- 
testant shows  that  the  said  processioners  with  the  county  sur- 
veyor took  no  notice  of,  nor  had  any  regard  in  the  marking  and 
tracing  of  said  line  anew  for  this  protestant's  possession  and 
.rights  as  hereinbefore  set  .out.  This  protestant  protests  the 
return  of  the  commissioners,  and  files  this  his  protest  thereto, 
and  said  line  as  traced  and  marked  anew  by  the  processioners 
with  the  county  surveyor. 

Now,  on  the  above  named  day  and  date,  and  within  thirty 
days  from  the  time  of  the  filing  of  the  same  with  the  Ordinary, 
he  files  this  protest  with  the  Ordinary  and  prays  that  the  same, 
together  with  the  proceedings  in  said  matter,  be  returned  to  the 
Clerk  of  the  Superior  Court  by  your  Honor,  and  that  such  other 
and  further  proceedings  be  had  in  the  matter  as  are  in  con- 
formity with  the  law.  This  the day  of ,  19.  .. 

Protestant. 

Georgia, County. 

The  above  and  foregoing  protest  filed  with  me  this day 

of ,19 

Ordinary. 

Office  of  Clerk  of  Superior  Court. 

The  within  protest,  together  with  the  other  proceedings  in 
said  matter,  having  been  delivered  to  me  by  the  Ordinary,  are 
filed  in  my  office  this day  of ,  19.  ... 

Clerk  of  Superior  Court. 


PKOMISSORY  NOTES  AND  BILLS  OF  EXCHANGE. 

§§4269-4294  (b). 


COMPLAINT  IN  THE  SUPERIOR  COURT  OR  CITY  COURT  ON 
PROMISSORY  NOTE  PROVIDING  FOR  ATTOE>:^Y'S  EEES. 


Georgia, County. 

To  the  Superior  Court  of  said  County : 

The  petition  of  John  Doe,  as  plaintiff,  against  Richard  Roe, 
as  defendant,  alleges: 


PROMISSORY  NOTES,  ETC.  711 

1st.     That  John  Doe  is  a  resident  of  said  county. 

2nd.     That  on  the day  of ,  19 .  . .  . ,  the 

defendant  made  to  plaintiff  a  certain  promissory  note  for  the 

sum  of. dollars,  with  interest  from  date  at 

per  cent,  per  annum,  which  said  note  contained  a  provision  that 
if  said  note  was  collected  by  suit  or  placed  in  the  hands  of  an 

attorney  for  collection,  the  defendant  would  pay per  cent. 

attorney's  fees,  together  with  said  principal  and  interest,  a  copy 
of  which  said  note  is  hereto  attached,  and  marked  "Exhibit  A." 

3rd.     That  on  the day  of ,  19 . 

plaintiff  served  defendant  personally  with  a  notice  in  writing 
that  it  was  his  intention  to  bring  suit  on  said  note  to  the ...... 

term,  19.  .  .  . ,  of superior  court,  and  that  unless 

the  defendant  paid  said  note  on  or  before  the  return  day  of 

said  court,  which  was  on  the day  of ,  19 .  .  . , 

that  in  such  event  he  would  claim  the  attorney's  fees  as  expressed 
in  said  note,  a  copy  of  which  said  notice  is  hereto  attached,  and 
marked  "Exhibit  B,"  and  that  the  defendant  has  failed  and 
refused  to  pay  said  note  or  'any  part  thereof. 

Wherefore,  plaintiff  prays  that  process  may  issue  requiring 
the  defendant  to  be  and  appear  at  the  next  term  of  the  superior 
court  of  said  county  to  answer  your  petitioner's  complaint. 

Plaintiff's  Attorney. 

Georgia, County. 

Personally  came  before  the  undersigned  attesting  officer,  John 
Doe,  plaintiff  in  petition  hereinbefore  set  out,  and  who,  being 
duly  sworn,  on  oath  says  that  the  facts  stated  in  said  petition 
are  true,  to  the  best  of  his  knowledge  and  belief. 

JOHN  DOE. 

Sworn  to  and  subscribed  before  me,  this 
the day   of ,    19.  ... 


Clerk  Superior  Court. 


"EXHIBIT  A." 


$ ,19.... 

,19....,!  promise  to  pay  to  the  order 

of , dollars,  for  value  received, 

with  interest  at per  cent,  per  annum,  from  date,  until 

paid.     And  each  of  us,  whether  maker,  security  or  endorser  on 


712  PROMISSORY  NOTES,  ETC. 

this  note,  hereby  waives  and  renounces,  for  himself  and  family, 
any  and  all  homestead  and  exemption  rights  to  which  he  or  they 
may,  in  any  event  be  entitled,  under  any  provisions  of  the  con- 
stitution or  laws,  State  or  federal;  and  each  further  waives 
demand,  protest  and  non-payment.  And  in  case  this  note  has 
to  be  collected  by  suit,  or  placed  in  the  hands  of  an  attorney 
for  collection,  I  agree  to  pay  all  costs  of  collection,  including  ten 
per  cent,  attorney's  fees. 
Witness  my  hand  and  seal. 

RICHARD  ROE.     (L.  S.) 


(NOTE:  It  has  been  the  practice  where  a  note  has  been  sued  upon, 
with  notice  given  for  attorney's  fees,  to  file  simply  general  denial. 
Where  there  is  no  affidavit  to  the  petition  this  can  be  done,  and  it  car- 
ries the  case  over  if  it  is  regularly  placed  on  the  trial  calendar.  By 
making  the  affidavit  as  made  to  this  petition,  any  answer  or  plea  the 
defendant  makes  must  be  sworn  to.  See  Code,  §5543.  , 

As  to  proof  of  the  service  of  the  notice  given  of  intention  to  sue  and 
proof  of  the  service  of  the  same  by  manifold  copy,  see  Savannah  Bank- 
ing and  Trust  Company  v.  Purvis,  6  App.  275  (6)  (65  S.  E.  35),  which 
reads : 

"Where  notices  are  executed  in  duplicate  or  otherwise  in  manifold 
and  one  or  more  of  the  copies  are  served  while  another  is  retained,  the 
copy  so  retained  is  admissible  as  primary  evidence  upon  an  issue  as  to 
the  service  of  the  notice  notwithstanding  the  production  of  the  copies 
served  has  not  been  called  for  by  a  notice  to  produce  or  otherwise.") 


MANIFOLD  COPY  OF  NOTICE  FOR  ATTORNEY'S  FEES.     §4252. 


"EXHIBIT  B." 


Georgia, County. 

To  Richard  Roe : 

You  are  hereby  notified  that  I  am  the  holder  of  the  note  made 

by  you  to  me  on  the day  of ,  19 .  .  .  . ,  for 

the  sum  of dollars,  with  interest  from  date  at 

per  cent,  per  annum,  wherein  there  is  a  provision  that 

if  said  note  has  to  be  collected  by  suit,  or  placed  in  the  hands 
of  an  attorney  for  collection,  you  are  obligated  to  pay  a  further 

sum  of per  cent,  as  attorney's  fees,  said  note 

being  due ,  19.  .  .  .,  and  it  is  my  intention  to 

bring  suit  on  said  note  to  the term,  19.  .  .  .,  of 

superior  court,  and  that  unless  you  pay  the  said 

note  on  or  before  the  return  day  of  said  term,  of  said  court, 


PROMISSORY  NOTES,  ETC.  713 

which  is  on  the day  of ,  19 .  . .  . ,  that  I  will 

claim  in  said  suit  the  attorney's  fees  as  expressed  in  said  note. 

This day  of ,19 

JOHN  DOE. 


PLEA  OF  NON  EST  FACTUAL    §4295. 


(State  the  case.) 

And  now  comes  the  defendant  in  the  above-stated  case  at  this 
the  appearance  term  of  said  case,  and  for  plea  says  that  the 
note  (or  other  instrument  in  writing  sued  on,  as  the  case  may 
be)  sued  on  in  the  above-stated  case,  was  never  made,  signed, 
nor  executed  by  him,  nor  by  any  other  person  by  him  so  author- 
ized to  do,  and  the  same  is  not  his  act  or  deed.  And  of  this  he 
puts  himself  upon  the  country. 

Defendant. 


AFFIDAVIT. 

Georgia, County. 

Personally  before  me,  the  undersigned,  an  officer  authorized 

to  administer  oaths,  came ,  who  on  oath  says 

that  the  statements  contained  in  the  foregoing  plea  are  true. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


(Official  designation.) 


(NOTE:     The  denial  must  be  on  oath  and  filed  at  the  first  term  after 
service  perfected.    §4295.) 


PROMISSORY  jSToTE  WITH  WAIVER  OF  HOMESTEAD. 


<fc  19 

«P >  A.'  ... 

after  date, promise  to  pay  to  the 

order  of , dollars,  at , 

for  value  received. 

With  interest  after  maturity  until  paid  at per  cent. 

per  annum,  with  all  costs  of  collection,  including  ten  per  cent. 


714  PROMISSORY  NOTES,  ETC. 

as  attorney's  fees,  if  collected  by  law  or  through  an  attorney  at 
law.  Each  of  us,  whether  principal,  security,  guarantor,  en- 
dorser, or  other  party  hereto,  hereby  severally  waives  and 
renounces  each  for  himself  and  family,  any  and  all  homestead 
and  exemption  rights  either  of  us,  or  the  family  of  either  of  us, 
may  have  under  or  by  virtue  of  the  Constitution  or  laws  of 
Georgia,  any  other  State,  or  the  United  States,  as  against  this 
debt  or  any  renewals  thereof,  and  each  further  waives  demand, 
protest,  and  notice  of  demand,  protest  and  non-payment.  Given 
under  the  hand  and  seal  of  each  party. 

[L.  S.] 

'[L.  S.] 

Due.. 


REAL,  ESTATE  COUPON  NOTE. 

No. 


On  the day  of ,  for  value  received,  .... 

promise  to  pay ,  or  order,  

dollars,  in  gold  coin  of  the  United  States  of  the  present  standard 
of  weight  and  fineness,  or  its  equivalent,  with  interest  from  date, 

in  gold  coin  aforesaid,  at  the  rate  of per  cent,  per  annum 

until  paid. 

And  if  this  note  is  not  paid  at  maturity  and  is  put  into  the 
hands  of  a  lawyer  for  collection,  I  agree  to  pay  ten  per  cent,  in 
addition  to  the  principal  and  interest  as  attorney's  fees. 

For  the  interest  accruing  before  maturity,  coupons  dated  this 
day  are  hereto  attached,  payable 

This  note  is  given  for  the  repayment  of  a  loan  made  to  under- 
signed by  said ,  which  is  secured  by  deed,  of 

even  date,  to  certain  land  situated,  lying  and  being  in , 

this  note  being  made  pursuant  to  terms  and  conditions  of  said 
deed. 

hereby  agree  to  keep  all  buildings  on  the 

property  this  day  deeded  to  secure  this  note,  insured  for  the 

sum  of  at  least  $ in  some  responsible  insurance 

company,  acceptable  to  payee,  with  loss,  if  any,  payable  to 

,  as interest  may  appear  at  time  of 

loss 

It  is  expressly  agreed  that  time  is  of  the  essence  of  this  con- 


PROMISSORY  NOTES,  ETC.  715 

tract,  and  therefore  that  if  either  of  said  interest  coupons  should 
not  be  promptly  paid  at  its  maturity,  or  should  any  tax  or  assess- 
ment accruing  against  said  property  become  delinquent  or  liable 
to  have  execution  issued  therefor,  or  should  the  insurance  above 

contracted  to  be  maintained  be  allowed  to  lapse , 

then,  and  in  that  event,  said  principal  sum,  together  with  all 
arrearages  of  interest  thereon,  shall  at  once  become  due  and 
collectable  at  law,  at  the  option  of  the  holder  thereof.  And  each 
of  us,  whether  surety,  guarantor,  endorser  or  other  party  hereto, 
severally  waives  and  renounces  each  for  himself  and  family,  any 
and  all  homestead  or  exemption  rights  which  each  or  either  of 
us,  or  the  family  of  either  of  us,  may  have  by  virtue  of  the 
Constitution  or  laws  of  the  State  of  Georgia  or  any  other  State 
or  the  United  States,  as  against  this  debt  or  any  part  thereof, 
or  any  renewal  thereof. 

Witness hand .  .  and  seal . . 

[SEAL.] 

[SEAL.] 


COUPON. 


$ ,19.... 

On  the day  of ,  19 .  . .  . ,  I  promise  to 

pay  to  the  order  of , dollars, 

at ,  with  interest  at  the  rate  of  eight  per  cent. 

per  annum  after  maturity,  being  the  interest  due  on  that  day 
on  the  promissory  note  hereto  attached,  of  even  date  herewith, 
for  $ ,  subject  to  all  the  conditions  of  said  note. 


No. 


PROMISSORY  NOTE  WITH  WAIVER  OF  HOMESTEAD  EXEMPTION. 


$ ,   19.... 

after  date,  T  promise  to  pay , 

or  order, dollars  for  value  received,  with  interest 

from at  the  rate  of per  cent,  per  annum, 

with  all  costs  of  collection,  including  ten  per  cent,  on  principal 
and  interest  as  attorney's  fees.  And  each  of  us,  whether  prin- 
cipal, security,  guarantor,  endorser  or  other  party  hereto,  do 


716  PROMISSORY  NOTES,  ETC. 

hereby  waive  and  renounce  for  self  and  family  all  right  and 
benefit  of  the  homestead  exemption  provided  for  by  the  Consti- 
tution and  laws  of  Georgia. 
Witness  my  hand  and  seal. 

[L.  S.] 

No.: 


GOLD  COIN  NOTE. 


$ ,  Ga., ,  19 

months  after  date,   promise  to  pay  to 

the  order  of ,   dollars,  in  gold 

coin  of  the  United  States,  or  its  equivalent,  for  value  received 

With  interest  after until  paid  at per  cent. 

per  annum,  with  all  costs  of  collection,  including  ten  per  cent, 
as  attorney's  fees,  if  collected  by  law  or  through  an  attorney 
at  law.  Each  of  us,  whether  principal,  security,  guarantor, 
endorser,  or  other  party  hereto,  hereby  severally  waives  and 
renounces  each  for  himself  and  family,  any  and  all  homestead 
of  exemption  rights  either  of  us,  or  the  family  of  either  of  us, 
may  have  under  or  by  virtue  of  the  Constitution  or  laws  of 
Georgia,  or  any  other  State  or  the  United  States,  as  against  this 
debt  or  any  renewal  thereof;  and  each  further  waives  demand, 
protest  and  notice  of  demand,  protest  and  non-payment.  It  is 
also  expressly  agreed  and  understood  if  this  note  is  not  paid 
when  due,  and  shall  remain  unpaid,  or  any  part  of  it  remain 
unpaid,  for  thirty  days  thereafter,  that  all  other  notes  out- 
standing, bearing  even  date  with  these  presents,  and  given  for 
the  same  intent  and  purpose  as  this  note,  shall,  at  the  option  of 
the  holder,  become  due  and  collectable — time  being  the  essence 
of  this  contract. 

[Seal.] 

[Seal.] 

Due.. 


PURCHASE  MONEY  NOTE  UNDER  BOND  FOR.  TITLES. 


$ ,  19.... 

On  or  before months  after  date, promise 

to  pay ,  or  order, dollars, 

in ,  value  received,  being  part  of  purchase  money 


PROMISSORY  NOTES,  ETC.  717 

for ,  as  per  bond  for  titles  this  day  given, 

with  interest  from  date,  at  the  rate  of per  cent,  per 

annum  until  paid,  and  all  costs  of  collection,  including  ten  per 
cent,  attorney's  fees. 

And  each  of  us,  whether  maker  or  endorser,  hereby  severally 
waives  and  renounces,  for  himself  and  family,  any  right  to  the 
benefit  of  the  homestead  exemptions  provided  for  by  the  Consti- 
tution and  laws  of  the  State  of  Georgia,  or  United  States,  as 
against  this  note.  It  is  also  expressly  agreed  and  understood 
that  if  this  note  is  not  paid  when  due,  and  shall  remain  unpaid, 
or  any  part  of  it  remain  unpaid,  for  ninety  days  thereafter,  that 
all  our  other  notes  outstanding,  bearing  even  date  with  these 
presents,  and  given  for  the  same  intent  and  purpose  as  this  note, 
shall  at  the  option  of  the  holder  become  due  and  collectable — 
time  being  of  the  essence  of  this  contract. 

Given  under  the  hand  and  seal' of  each  party. 

.,.' '. .  .  [SEAL.] 

. .  .  . [SEAL.] 

Due ,19 


RETAINING  TITLE. 


$..........  .,19.... 

after  date,  promise  to  pay 

to ,  or ,  dollars, 

value  received,  being  for  part  of  purchase  money  for , 

with  interest until  paid  at per  cent,  per  annum, 

with  all  cost  of  collection,  including  ten  per  cent,  as  attorney 
fees,  if  collected  by  law  or  through  an  attorney. 

It  is  understood  and  agreed  that  the  title  to  the  above  de- 
scribed property  is  to  remain  in  said until  the 

full  amount  of  purchase  money  is  paid. 

And  each  of  us,  whether  principal,  security,  guarantor,  en- 
dorser or  other  party  hereto,  hereby  severally  waives  and  re- 
nounces each  for  himself  and  family,  any  and  all  homestead 
or  exemption  rights  either  of  us  or  the  family  of  either  of  us 
may  have  under  or  by  virtue  of  the  Constitution  or  laws  of 
Georgia,  any  other  State  or  the  United  States,  as  against  this 
debt  or  any  renewal  thereof.  And  each  further  waives  demand, 
protest  and  notice  of  demand,  protest  and  non-payment. 

: [L.S.] 

[L.S.] 

Witness :    .  


718  PROMISSORY  NOTES,  ETC. 

COLLATERAL  NOTE. 

..,19, 


promise  to  pay  to  the  order  of ... 

at , dollars,  for  value  received, 

with  interest  at  the  rate  of per  cent,  per  annum  from 

until  paid. 

To  secure  the  prompt  payment  of  this  note,  or  any  other 

indebtedness  due  or  to  become  due  the  holder  of  this  note 

here  pledges  the  following  collateral,  now  in  possession  of  said 


It  being  hereby  agreed  that  other  collaterals  of  equal  value 

may  be  substituted  for  the  above  with  the  consent  of  said 

or  the  holder  of  the  note,  which  collaterals,  when  so 

substituted,  shall  be  subject  to  this  pledge.    And 

represent  and  covenant  that have  full  power  and 

authority  to  pledge  such  collaterals.     And 

hereby  constitute ,  or  the  holder  of  this  note, 

jointly  and  severally attorney  or  attorneys  to  collect, 

sell,  or  otherwise  dispose  of  the  whole  or  any  portion  of  said 
collaterals  either  at  public  or  private  sale,  and  without  notice 
to of  any  intention  to  sell,  either  for  the  pur- 
pose of  paying  said  note  when  due,  or  in  case  margins  shall  not 

be  furnished when  required.     And 

authorize  the  said ,  or  the  holder  of  this  note, 

to  become  a  purchaser  on  its  own  account  at  any  such  sale  or 

sales ;  and  for  that  purpose  in name  to  sign  and  execute 

any  transfer,  conveyance  or  instrument  in  writing,  whether  un- 
der seal  or  otherwise,  which  may  be  necessary  or  lawful  in  the 
premises. 

In  case  of  default hereby  agree  to  pay  ten  per  cent. 

attorney's  fees  and  cost  of  court  that  may  be  incurred  in  secur- 
ing the  rights  of  said or  the  holder  of  this  note, 

and  collecting  any  amounts  or  balance  which  may  remain  unpaid 
under  this  instrument;  which  fees  and  costs  shall  be  a  part  of 

indebtedness  herein  created,  and  be  paid  by 

said or  holder  of  this  note,  from  proceeds  of 

such  sale  or  sales. 

And  to  further  secure  the  payment  hereof,  each  of  us,  whether 
maker  or  endorser,  hereby  expressly  waives  any  and  all  exemp- 


PROMISSORY  NOTES,  ETC.  719 

tion  rights  secured  to  us  by  the  Constitution  and  laws  of  Georgia, 
or  of  the  United  States. 

Witness  our  hands  and  seals. 

[L.S.] 

[L.  S.] 

Signed  in  the  presence  of 


JOINT  AND  SEVERAL  NOTES. 


months  after  date  we,  or  either  of  us,  promise 

to  pay ,  or  order  [or  bearer], 

dollars,  for  value  received,  with  interest  from at  the 

rate  of per  cent,  per  annum  until  paid. 

This .day  of ,  19 


NOTE  BY  PRINCIPAL  AND  SECURITY. 


months  after  date,  we,  or  either  of  us,  promise 

to  pay ,  or  order  [or  bearer], 

dollars,  for  vdlue  received,  with  interest  from at  the 

rate  of per  cent,  per  annum  until  paid. 

This day  of .,19 

,  Principal. 

,  Security. 


CREDIT  ENTERED  ON  NOTE,  FORM  OF. 


Paid  on  the  within  note dollars.     This 

day  of ,19 


[NOTE. — In  order  for  the  credit  entered  to  arrest  the  running  of  the 
statute  of  limitations  the  same  must  be  in  the  handwriting  of  the 
maker  of  the  note  or  else  signed  by  him  or  by  some  one  by  him  duly 
authorized.] 


720  PROMISSORY  NOTES,  ETC. 

CONDITIONAL  SALE 


Georgia, County. 

$ ,  19.... 

after  date, promise  to  pay  to  the  order 

of ,  with  interest  after at  the  rate  of 

eight  per  cent,  per  annum  until  paid,  to  be  paid  annually,  and 
if  not  so  paid  to  be  counted  as  principal ;  and  costs  of  collection, 
including  ten  per  cent,  of  principal  and  interest  as  attorney's 
fees.  Value  received. 

And  each  of  us,  whether  maker,  or  endorser,  as  to  this  debt, 
expressly  waives  and  renounces  all  right  to  the  benefit  of  home- 
stead and  exemption  under  the  Constitution  and  laws  of  the 
State  of  Georgia.  In  testimony  whereof  this  note  is  signed 
and  sealed. 

This  note  is  given  for  the  purchase  money  of 


now  sold  to  me  by  the  payee.  And  it  is  expressly  agreed  as  part 
of  the  terms  of  said  sale  that  the  title  to  said  property  is  to 
remain  and  be  in  the  payee  or  his  assigns  until  this  note  and 
expenses  of  collection  are  fully  paid  off  and  discharged. 

And  in  consideration  of  the  premises,  and  in  consideration  of 
the  fact  that  I  am  intrusted  with  the  custody  of  the  property,  I 
further  assume  the  risk  df  its  safe  keeping,  and  agree  to  pay  for 
the  same  although  it  may  be  lost  or  destroyed  or  injured,  or 
may  die. 

If  I  fail  to  pay  for  the  said  property,  and  the  holder  of  this 
note  shall  elect  to  retake  the  same,  then  and  in  that  event  I  agree1 

to  pay  him for  the  hire  thereof  from  this  date 

for  the  time  I  shall  keep  it. 

Witness  my  hand  and  seal,  this ,  19.  ... 

[L.  S.] 

[L.  S.] 

Signed,  scaled  and  delivered  in  the  presence 

of 

.,  J.  P. 


FARM  RENT  NOTE. 


Lbs.  ,19 

By  the day  of ,  19 .  .  .  . , promise 


PROMISSORY  !\OTKS,  ETC.  721 

to  pay  ..................  ,  or  order,  at  any  warehouse  ill  the 

city  of  ..........  that  may  be  designated  by  said  ............ 

..........  pounds  of  lint  cotton,  to  class  middling,  packed  in 

good  merchantable  bales,  free  of  charge  to  said  .............  , 

for  rent  for  the  year  19.  ...  of  the  following  described  lands, 

situated  in  ............  county,  Georgia,  to  wit,  ........... 

and  known  as  the  ................  place.     The  payee  nor  his 

assigns  to  be  liable  for  any  repairs  on  the  premises. 

And  ...............  hereby  waives  all  benefit  of  the  home- 

stead and  exemption  laws  of  Georgia,  as  against  the  payment  of 
this  note;  and  agrees  in  case  the  same  is  collected  by  suit  or 
through  an  attorney,  to  pay  ten  per  cent,  thereon  as  attorney's 
fees,  and  all  costs  of  suit. 

Witness  ............  hand  .  .  and  seal  .  . 


.............  :  .................  [L.  s.] 

Signed,  sealed  and  delivered  in  the  presence 
of  ...........................  ....... 

.  J.  P. 


RENT  NOTE  WITH  LIEN. 


By  the day  of ,19 ,1  promise  to 

pay ,  assigns  or  bearer,    

for  rent  of .  .  .  [describe  the  land]  .  .  .for  the  year  19 ,  with 

interest  from  maturity,  at  eight  per  cent,  per  annum,  with  all 
costs  of  collection,  including  ten  per  cent,  on  principal  and 
interest  as  attorney's  fees. 

The  lien  of  my  said  landlord  shall  attach  and  date  at  the  time 
of  the  making  of  this  note.  I  waive  and  renounce  all  right  to 
benefits  of  homestead  and  exemption  under  the  laws  of  Georgia 
as  against  this  debt. 

Witness  my  hand  and  seal  this day  of , 

"••"          ' [L.S, 

[L.  S.] 

Signed,  sealed  and  delivered  in  the  presence 

of 

.  J.  P, 


722  PROMISSORY  NOTES,  ETC. 

CERTIFICATE  OF  PROTEST.     §5822. 


Georgia, County. 

I, ,  a  notary  public  in  and  for  said  county, 

do  hereby  certify  that  on  the day  of ,  19.  .  .  ., 

I  duly  presented  to for  payment  a  certain 

for dollars,  principal,  dated  the 

day  of ,  19 .  . .  . ,  made  by  said , 

and  indorsed  by ,  and  demanded  payment  of 

the  same ;  that  payment  thereof  was  refused  and  that  said  paper 
Was  on  the  same  date  protested  by  me  for  non-payment. 

And  I  further  certify  that  on  the  same  date,  to  wit,  on  the 

day  of ,  19 .  . .  . ,  I  gave  written  notice  of 

the  non-payment  thereof  to by  depositing  the 

said  notice,  postage  prepaid,  in  the  post  office  at , 

duly  inclosed  in  an  envelope  directed  to  the  said 

at ,  Georgia,  where  the  said resides. 

Witness  my  hand  and  seal  of  office  this day  of 

,19.... 

[SEAL]  

Notary  Public, County,  Georgia. 


NOTICE  OF  PROTEST.    §4280. 


Georgia,  ............  County. 


To  ..................  ,  Indorser  : 

Take  notice  that  a  certain  ................  for  the  sum  of 

..........  dollars,  principal,  dated  the.  .  .  .  day  of  ..........  , 

19  .  .  .  .  ,  payable  the  ......  day  of  ............  ,  19  .  .  .  .  ,  made 

by  ...............  ,  and  endorsed  by  you,  has  this  day  been 

protested  by  me  for  non-payment,  payment  having  been  first 
duly  demanded  and  refused.  As  indorser  of  the  same  you  will 
be  held  liable  for  the  amount,  with  interest,  damage  and  costs. 

Notary  Public. 


Attorney's  fees.  Notice  of  intention  to  sue,  required  by  §4252  as  con- 
dition precedent  to  recovery  of  attorney's  fees,  must  disclose  holder 
of  note  in  whose  behalf  payment  is  demanded.  7  App.  645  (3) 
(67  S.  E.  896);  14  App.  300  (80  S.  E.  723);  17  App.  517  (87  S.  E. 
770).  Notice  naming  term  of  court  preceding  term  to  which  suit 
is  returnable,  not  sufficient.  15  App.  133  (82  S.  E.  772).  Notices 


PROMISSORY  NOTES,  ETC.  723 

were  held  sufficient  in  the  following  cases:  128/414  (57  S.  E. 
704);  141/578  (81  S.  E.  892);  13  App.  309  (79  S.  E.  165);  14  App. 
80  (80  S.  E.  301);  17  App.  463  (87  S.  E.  701).  Where  petition 
alleges  that  notice  has  been  given,  it  is  unnecessary  to  attach  to 
petition  copy  of  such  notice.  140/603  (3)  (79  S.  E.  540).  Allega- 
tion that  plaintiff  had  caused  written  notice  to  be  served,  together 
with  prayer  for  recovery  of  attorney's  fees,  was  sufficient  to  show 
that  notice  based  on  section  4252  was  notice  of  intention  to  sue 
on  note  and  seek  to  recover  attorney's  fees  according  to  its  terms. 
140/653,  654  (4)  (79  S.  E.  539).  Fact  that  carbon  copy  of  notice 
served  differed  in  certain  immaterial  respects  from  notice  actually 
served  did  not  render  such  copy  objectionable  as  immaterial  and 
irrelevant.  141/840  (82  S.  E.  246).  In  absence  of  demurrer,  state- 
ment in  petition  that  defendants  had  been  notified  of  suit  in  writing 
ten  days  before  filing  same,  in  connection  with  allegation  that  de- 
fendants in  their  note,  copy  of  which  was  attached  to  petition, 
promised  to  pay  attorney's  fees,  was  sufficient  basis  for  recovery  of 
such  fees.  13  App.  119  (2)  (78  S.  E.  862).  Allegation  that  in 
terms  of  law  petitioner  gave  notice  of  intention  to  sue,  and  that 
defendant  failed  to  pay,  was  sufficient,  in  absence  of  special  de- 
murrer, to  authorize  proof  authorizing  recovery  of  attorney's  fees. 
14  App.  293  (2)  (80  S.  E.  699). 

Blanks.  Note  payable  to  order  and  issued  with  a  blank  for  the  payee's 
name  may  be  filled  up  by  any  bona  fide  holder  with  his  own  name 
as  payee,  and  it  is  a  good  promissory  note  as  to  him  from  its  date. 
140/398  (2)  (78  S.  E.  841).  Date  of  payment  omitting  year,  how 
construed.  1  App.  63  (57  S.  E.  911).  Indorsement  in  blank,  effect 
of.  122/70  (49  S.  E'.  809). 

Bona  fide  holder.  Not  necessary  for  plaintiff's  petition  to  allege  from 
whom  note  sued  on  was  purchased,  especially  in  absence  of  de- 
murrer. 18  App.  263  (89  S.  E.  450). 

Consideration.  When  sealed  note  is  sued  on  and  petition  nevertheless 
recites  the  consideration,  it  is  permissible  for  plaintiff  to  strike,  by 
amendment,  the  allegation  as  to  consideration.  17  App.  495  (87 
S.  E.  716).  Mere  allegation  that  note  is  wholly  without  considera- 
tion amounts  to  nothing  more  than  a  plea  of  general  issue,  and  is 
too  vague  and  indefinite  to  constitute  a  proper  plea  of  failure  of 
consideration.  18  App.  45  (2)  (88  S.  E.  825).  Plea  here  was  not 
sufficient  to  charge  notice  of  failure  of  consideration.  145/494  (89 
S.  E.  613). 

Copy.  Code,  §5541,  is  substantially  complied  with  when,  in  suit  against 
maker  of  large  number  of  notes,  copy  of  one  is  attached  to  the 
petition,  and  it  is  alleged  that  all  of  the  other  notes  are  exactly 
like  it  "in  form  and  substance,  except  as  to  dates  of  maturity, 
which  are  one  month  apart  in  succession."  16  App.  146  (84  S.  E. 
616). 

Descriptio    personae.      The    abbreviations    and    letters,    "Treas.,"    and 

"V.  P.,"  following  names  respectively  of  two  indorsers,  are  mere 

words  of  description,  and  obligation  incurred  by  such  indorsers  is 

personal.     14  App.  729  (83  S.  E,  314). 

Entries  on  back  of  note  may  be  relied  on  by  defendant  to  suit,  but  may 

be  explained.     122/249  (50  S.  E.  95). 

Execution.  Note  which  is  basis  of  suit  need  not  have  its  execution 
proved  where  no  plea  of  non  est  factum  has  been  filed.  16  App. 
95,  96  (3)  (84  S.  E.  591);  18  App.  445  (3)  (89  S.  E.  635).  Not 
error  to  admit  in  evidence  notes  sued  on,  though  their  execution 


724  RECOUPMENT— RES  JUDICATA 

was  not  proved  by  attesting  witnesses,  when  defendants  had  filed 
no  plea  of  non  est  factum.  16  App.  14,  15  (7)  (84  S.  E.  483). 

"For  value  received,"  a  patent  ambiguity  explainable  by  parol.  127/34 
(56  S.  E.  86). 

Indorsement.  Plea  denying  transfer,  assignment,  or  indorsement  of 
certain  drafts  from  the  original  payee  to  the  plaintiff,  in  absence 
of  demurrer,  must  be  treated  as  such  a  compliance  with  Code, 
§4299,  as  to  put  plaintiff  on  proof  of  indorsements.  14  App.  645 
(82  S.  B.  51).  Plea  necessary,  to  require  proof  of  indorsement.  17 
App.  170,  192  (86  S.  E.  4S4). 

Non  est  factum.  Plea  under  oath  denying  allegation  that  plaintiff  is 
bona  fide  holder  of  note,  for  value  and  before  maturity,  is  not  the 
equivalent  of  a  plea  of  non  est  factum  as  to  the  indorsement.  13 
App.  35  (78  S.  E.  772).  Plea  must  be  verified.  142/48  (3-a)  (82  S. 
E.  441).  Plea  of  non  est  factum  is  subject  to  be  stricken  when  it 
does  not  unequivocally  deny  that  the  notes  sued  on  are  the  act 
and  deed  of  defendant.  18  App.  161  (89  S.  E.  77). 

Seal  must  be  recited  in  body  of  note  and  appear  after  signature. 
126/311  (55  S.  E.  62);  127/441  (56  S.  E.  631).  Not  make  note  a 
sealed  instrument,  without  a  recital  for  that  purpose  in  the  body 
of  the  note.  125/801  (54  S.  E.  697). 

Writing.  To  enable  holder  of  promissory  note  payable  to  another  to 
assert  successfully  the  rights  of  a  bona  fide  purchaser  for  value, 
it  must  appear  that  the  "payee  formally  indorsed  or  assigned  it  in 
writing  to  the  holder.  13  App.  492  (79  S.  E.  359). 


RECOUPMENT.     §§4350-4353. 
(See  Set-Off  and  Recoupment,  post.) 


REFERENCE  TO  AUDITORS.     §§5127-5149. 
(See  Auditors,  ante.) 


RELEASE. 

(See  Accord  and  Satisfaction,  and  Release,  ante.) 


RES  JUDICATA. 


PLEA.    §§4335,  5678. 


(State  the  case.) 

And  now  comes  the  defendant  and  for  plea  and  answer  says : 

1.     That  on  the day  of ,  19.  .  .  .,  in  an 

action  in  the court  of  said  county,  between 


ROADS  725 

,  the  plaintiff,  and ,  the  defendant,  a 

judgment  was  rendered  in  favor  of  said  plaintiff  against  said 
defendant,  for  the  sum  of dollars. 

A  copy  of  said  judgment  is  hereto  attached. 

2.  Defendant  avers  that  said  action,  in  which  the  said  judg- 
ment was  rendered,  was  between  the  same  parties,  and  for  the 
same  cause  of  action  as  that  now  alleged  in  plaintiff's  petition, 
and  said  judgment  was  a  full  and  final  adjudication  of  the 
claim  and  cause  of  action  now  sued  on. 

And  of  this  the  defendant  puts  himself  upon  the  country. 

Defendant's  Attorney. 


ROADS.    §§628-743. 
(See  Bridges,  ante,  page  334.) 


APPLICATION  FOR  NEW  ROAD.    §640. 


Georgia, County. 

To  the  Ordinary  of  said  County: 

The  application  of  the  undersigned  [set  out  the  names  of  the 
applicants],  citizens  of  said  county,  respectfully  shows  that  it 
will  be  a  public  utility,  and  the  convenience  of  the  traveling 
public,  and  the  people  of  the  neighborhood  will  be  greatly  pro- 
moted by  the  establishment  of  the  new  road,  commencing  [par- 
ticularly describe  the  proposed  road,  its  commencing  point,  its 
course,  by  what  residences  and  through  whose  lands  it  will  run, 
and  its  points  of  convergence  with  another  public  road,  etc.]. 

Wherefore,  your  petitioners  pray  the  appointment  of  three 
road  commissioners,  residing  as  near  where  such  road  is  intended 
to  pass  as  possible,  to  make  a  review  of  said  contemplated  road ; 
and  if  they  find  such  new  road  of  public  utility,  to  proceed  to 
mark  it  out,  and  to  make  their  report  to  the  ordinary  of  said 
county  that  it  was  laid  out  and  marked  conformably  to  law. 

(NOTE:  Section  640  also  applies  to  an  alteration  in  an  old  road.  If 
an  alteration  is  desired,  the  foregoing  petition  can  easily  be  adapted, 
by  describing  the  old  road,  and  setting  out  the  changes  desired  to  be 
made  by  the  new  one.) 


726  ROADS 

APPOINTMENT  OF  REVIEWERS. 


Georgia,  ............  County. 

.........  Court  of  Ordinary,  at  Chambers, 


....................  and   [set  out  the  other  petitioners], 

having  filed  their  application,  showing  that  the  establishment 
of  a  new  road,  commencing  [describe  the  road  as  in  the  applica- 
tion] will  be  of  public  utility,  and  the  convenience  of  the  travel- 
ing public,  and  the  people  of  the  neighborhood  will  be  greatly 
promoted  by  the  establishment  of  the  new  road  proposed  ;  it  is 
hereby  ordered  that  .................  ,    ................. 

and  ..................  ,  road  commissioners,  residing  as  near 

where  such  road  is  intended  to  pass  as  possible,  be  and  they  are 
hereby  appointed  reviewers  of  said  contemplated  road,  and  that 
they  examine  into  the  same,  and  if  they  find  that  such  road  will 
be  of  public  utility,  and  the  convenience  of  the  traveling  public, 
and  the  people  of  the  neighborhood  will  be  greatly  promoted  by 
its  establishment,  they  are  hereby  directed  and  required  to  lay 
out  and  mark  the  same  conformable  to  law,  and  make  their 
report  thereof  to  this  court,  under  oath,  that  it  was  so  laid  out 
and  marked. 

Witness  my  hand  and  seal  of  office  this  ......  day  of  .......  , 

19  ____ 

[SEAL]  ................................ 

Ordinary. 


REPORT  OF  REVIEWERS. 


Georgia, County. 

To  the  Court  of  Ordinary  of  said  County : 

The  undersigned,  appointed  for  the  purpose  of  reviewing  the 

road  petitioned  for  by. and  others,  said  road 

commencing  [describe  the  road  as  in  the  within  order  of  ap- 
pointment], have  performed  the  duty  assigned  them,  having 
m'ade  the  examination  required  by  law,  and  now  find  and  report 
under  oath  that  the  contemplated  road  will  be  of  public  utility, 
and  the  convenience  of  the  traveling  public,  and  the  people  of 
the  neighborhood  will  be  greatly  promoted  by  its  establishment 


ROADS  727 

and  that  they  have  laid  out  and  marked  said  road  conformably 
to  law. 

This day  of ,  19 


Reviewers. 


AFFIDAVIT  TO  REPORT.    §640. 


Georgia, County. 

The  undersigned,    ,    and 

,  came  in  person  before  the  undersigned,  and, 

after  being  duly  sworn,  say  that  the  statements  contained  in  the 
foregoing  petition  are  true. 


Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

,  Ordinary. 


CITATION  OF  ORDINARY.    §641. 


Georgia, County. 

To  All  Whom  it  may  Concern : 

Take  notice  that and  [set  out  the  names  of 

the  applicants]  have  applied  for  an  order  seeking  the  establish- 
ment of  a  new  road,  which  has  been  laid  out  and  marked  con- 
formably to  law  by  commissioners  duly  appointed,  and  a  report 
thereof  made  on  oath  by  them,  said  road  commencing  [describe 
the  road  as  set  out  in  the  report  of  the  reviewers]  ;  now,  if  no 
good  cause  be  shown  to  the  contrary  by  persons  interested  in  this 
matter,  the  order  will  be  granted  by  the  undersigned,  at  the 

office  of  the  ordinary  in  said  county,  on  the.  , day 

of ,  19.  .  .  .,  establishing  said  new  road. 

This day  of... ,  19 

Ordinary. 


[NOTK. — The  above  citation  must  be  published  for  thirty  days  at  the 
door  of  the  court  house,  and  in  the  public  gazette  if  there  is  one  in 
the  county.] 


728  ROADS 

NOTICE  TO  LAND  OWNERS.     §642. 


Georgia, County. 

To : 

and  others  have  applied  for  a  new  road, 

commencing  at  [describe  the  road  as  set  out  in  the  report  of  the 

reviewers] ,  which has  been  marked  out  through 

jour  land  by  commissioners  duly  appointed,  who  have  filed  their 
report  on  oath. 

The  application  and  report  of  commissioners  for  said 

road  will  be  heard  at  my  office  on  the day  of , 

19.  .  .  .,  next,  by  which  time  you  must  put  in  your  claim  for 
damages  or  be  ever  after  estopped. 

If  no  legal  cause  is  shown  to  the  contrary,  an  order  for  said 
road  will  be  finally  granted. 

This day  of ,  19 

Ordinary. 


ORDER  ESTABLISHING  THE  ROAD.     §641. 


Georgia,  ............  County. 

Ordinary's  Office  of  said  County,  at  Chambers, 


. 

Upon  the  report  of  the  reviewers  appointed  to  lay  out  and 
mark  the  contemplated  new  road   commencing    [describe  the 
road  as  set  out  in  the  report  of  the  reviewers],  and  the  under- 
signed, ordinary  of  said  county,  on  the  investigation  had,  being 
willhig  to  grant  such  road,  and  citation  having  been  duly  pub- 
lished, according  to  law,  and  ..........  ,  the  owners,  residing 

on  the  land  which  said  road  goes  through,  having  been  legally 
served  in  writing  with  the  notice  required  by  law,  it  is  further 
ordered  that  said  road  be,  and  the  same  is,  hereby  established 
as  one  of  the  public  roads  in  said  county,  and  it  is  further  or- 
dered that  the  clerk  of  this  court  furnish  the  commissioners  of 
the  ..........  road  district  of  said  county  with  a  certified  copy 

of  this  order;  and  said  commissioners  are  directed  and  required 
to  have  said  road  opened,  an  overseer  appointed,  and  hands  ap- 
portioned for  said  road. 

This  ......  day  of  ............  ,  19  ____ 

Ordinary. 


ROADS  729 

SUMMONS  OF  ROAD  HANDS  BY  OVERSEER.     §§651,  652. 


Georgia, County. 

To ': 

You  are  hereby  notified  to  be  and  appear  at by 

o'clock.  .  .  .m.,  on  the day  of ,19 , 

for  the  purpose  of  working  the  public  road  leading  from 

to ,  and  bring  with  YOU  the  following  implements: 

LIST  OF  DEFAULTERS  RETURNED  BY  OVERSEER.     §653. 

Georgia, County. 

To  the  Commissioners  of  Roads  in  and  for Road 

District  in  said  County: 

At  a  working  of  the  road,  of  which  the  undersigned  is  over- 
seer, commencing  on  the day  of ,  19 ,  and 

continuing  for days,  the  following  are  defaulters  [set 

out  the  names  of  the  defaulters  and  the  number  of  days  of  the 
default]. 

This day  of ,19 

Overseer. 
OVERSEERS'  WEEKLY  REPORT. 

For  week  ending ,  19.  ... 

Road 

Name  of  Defaulters.  Dist.  Where  Reside. 

Number. 


730  EOADS 

NUMBER  TRIED  AND  FINED,  OR  OTHERWISE  DISPOSED  OF. 


Attested  by  two  witnesses :         Approved  by  two  Comm'rs. 


Overseer. 


NOTICE  TO  DEFAULTERS.     §667. 


Georgia, County. 

To : 

You  are  hereby  notified  to  be  and  appear  at  a  sitting  of  the 

board  of  road  commissioners  in road  district  at 

in  said  district,  on  the day  of , 

19.  .  .  .,  to  answer  for  your  default  as  a  road  hand  at  a  recent 
working  of  the  road,  of  which  I  am  overseer. 

This' day  of ,  19 

Overseer. 


EXCUSE  OF  DEFAULTER.     §667. 


Georgia, County. 

In  re ,  road  defaulter. 

And  now  comes ,  and  for  excuse  for  not  attend- 
ing at ,  on  the day  of ,  19 , 

for  the  purpose  of  working  the  public  road  leading  from 

to ,  says  that  there  was  no  written  summons  served  upon 

him  as  required  by  law,  nor  was  he  otherwise  notified  to  appear 
and  work  said  road. 

This day  of ,  19 

Georgia, County. 

Personally  before  me,  one  of  the  commissioners  of  roads  for 
road  district  of  said  county,  came ,  who 


ROADS  731 

on  oath  says  that  the  statements  contained  in  the  foregoing  are 
true. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

,  Commissioner. 


OATH  OF  WITNESS. 


You  do  solemnly  swear  that  you  will  true  answers  make  to 
all  questions  that  you  will  be  asked  by  the  commissioners  touch- 
ing the  non-performance  of  road  duty ;  so  help  you  God. 

JUDGMENT  OF  THE  BOARD  OF  COMMISSIONERS. 


Georgia, County. 

At  a  sitting  of  the  commissioners  of  roads  in  and  for  the .... 

road  district  in  said  county,  held  at ,  in  said  county, 

in  case  of  default,  it  appears  that ,  after  being  duly 

notified,  made  default  in  working  on  the  road  to  which  he  was 

assigned.  And  it  appearing  that  said has  been  duly 

notified  to  attend  a  sitting  of  the  board  of  commissioners  this 

day  to  answer  said  default,  and  said. having  failed  to 

appear.  And  it  appearing  that  said has  been  a  de- 
faulter for days : 

Ordered  that  said pay  a  fine  of dollars  for 

each  day  of  his  default  for  non-performance  of  road  duty. 

Witness  our  hands  and  official  signatures  this day  of 

,19.. 


Commissioners. 


WRIT  OF  FIERI  FACIAS. 


Georgia, County. 

To ,  Constable  in  and  for District,  G.  M. : 

We  command  you  that  of  the  goods  and  chattels,  lands  and 

tenements  of ,  of  said  district,  you  cause  to  be  made 

the  sum  of dollars,  the  amount  of  fines  imposed  upon 


732  ROADS 

the  said for  his   default  in  non-performance  of 

road  work ;  whereof  the  said is  convicted  and  lia- 
ble, and  the  said  sum  being  collected  within  ten  days  thereafter 
you  are  required  to  pay  over  to  the  undersigned  or  one  of  them. 

Witness  our  hands  and  official  signatures  this day 

of..  .  19.. 


Commissioners. 


APPLICATION  TO  APPORTION  ROAD.     §662. 


Georgia, County. 

To , and  .........  Road  Commissioners  of 

the Road  District : 

makes  this  application  to  the  road  commission- 
ers above  named  for  an  equal  and  just  portion  of  the  public  road 

leading  from to ,  in  the 

road  district,  in  said  county,  to  be  apportioned  to  him  and  his 
hands  on  petitioner's  farm.  -Petitioner  and  his  said  hands,  to 
wit,  [name  the  several  hands]  will  faithfully  work  and  keep 
in  good  repair  the  equal  and  just  portion  of  said  road  appor- 
tioned to  him  and  his  said  hands. 

This day  of ,  19 


ORDER  GRANTING  APPLICATION. 


Read  and  considered.     It  is  hereby  ordered  that , 

the  applicant  in  the  foregoing  petition,  be  assigned  that  portion 

of  the  public  road  leading  from to , 

in  the road  district,  in  said  county,  beginning  at 

the and  extending  to '.  . ,  a  distance  of 

miles  and yards,  the  same  to  be  by  him  faithfully 

worked  and  kept  in  good  repair  by  himself  and  his 

hands,  to  wit,  [set  out  the  names  of  the  hands.] 


Commissioners. 


ROADS  733 

PETITION  FOR  DAMAGES.     §678. 


Georgia, County. 

To  the  Ordinary  of  said  County: 

The  petition  of ,  one  of  the  owners  through  whose 

land  the  proposed  new  road  hereinafter  mentioned  will  be  laid 
out,  feeling  aggrieved  by  reason  of  the  laying  out  of  the  said 
proposed  new  road,  respectfully  shows: 

1.'  That and  other  citizens  of  said  county,  pray- 
ing for  the  granting  of  an  order,  have  filed  an  application  in 
writing  with  the  ordinary  of  said  county,  praying  for  the  grant- 
ing of  an  order  for  the  establishment  of  a  new  road  commenc- 
ing [describe  the  road  as  in  the  application]. 

2.  Petitioner  shows  that  said  contemplated  road  as  estab- 
lished will  run  through  his  land,  and  that  he  will  thereby  be 
injured  to  the  Amount  of dollars. 

Wherefore,  he  prays  that  a  warrant  may  issue  under  the  hand 
of  the  ordinary,  directed  to  the  sheriff  of  said  county,  requesting 
him  to  summon  from  the  vicinage  through  which  said  proposed 
road  will  run  a  jury  of  freeholders  to  try  such  question  of  dam- 
age, as  required  by  law. 


WARRANT  TO  THE  SHERIFF.     §678. 


Georgia, County. 

To ,  Sheriff  of  said  County : 

having  petitioned  in  writing  the  ordinary  of 

said  county,  alleging  that  he  as  one  of  the  land  owners  through 

which  the  roads  run  will  be  damaged  in  the  sum  of 

dollars  by  the  opening  of  said  proposed  new  road,  commencing 
[describe  the  road  as  in  the  foregoing  petition].  You  are  there- 
fore directed  and  required  to  summon  from  the  vicinage  through 
which  said  proposed  road  as  established  will  run,  a  jury  of  twelve 
competent  freeholders  who,  after  being  duly  sworn  by  some 
justice  of  the  peace,  shall  truly  and  impartially  assess  any  dam- 
age the  said ,  as  owner  aforesaid,  will  sustain  by 

means  of  said  new  road,  and  the  justice  of  the  peace  who  admin- 
isters said  oath  shall  preside  over  their  deliberations. 

Witness  my  hand  and  seal  of  office  this day  of , 

1"9.... 

[SEAL]  

Ordinary. 


734  ROADS 

OATH  OF  JURY.     §678. 


You,  and  each  of  you,  do  swear  that  you  will  truly  and  im- 
partially assess  any  damages will  sustain  by  means 

of  a  proposed  new  road  over  the  lands  of  the  said , 

to  be  opened  upon  the  petition  of and  others ;  so 

help  you  God. 

TRIAL  OF  QUESTION  OF  DAMAGE,  NOTICE  OF.     §681. 


Georgia, County. 

To ,   and ,  Commissioners  of  the 

Road  District : 

You  are  hereby  notified  to  attend  at [naming  a  con- 
venient house  near  by  where  the  hearing  may  be  had] , 

in  said  county,  on  the day  of ,  19 .  .  .  . ,  when  and 

where  a  question  of  damage  to ,  the  owner  of  lands 

through  which  said  proposed  new  road  will  run,  consequent  upon 
the  opening  and  establishing  of  the  new  road  proposed  to  be  run, 
said  road  commencing  [describe  the  road  as  in  the  petition],  at 

which  time  the  question  of  damage  to  the  said will 

be  submitted  to  a  jury. 

This day  of ,  19 

'  'Sheriff. ' 


[NOTE. — §681  requires  the  sheriff  to  notify  the  justice  of  the  peace  of 
the  district  where  the  road  lies,  and  also  the  owner  of  the  land,  and  a 
notice  similar  to  the  foregoing  shall  be  served  upon  them.] 


VERDICT. 

We,  the  jury,  find  for  the  plaintiff  the  sum  of. 
dollars  damages,  and  costs  of  suit. 

This day  of ,  19 


Foreman. 
— OR — 
We,  the  jury,  find  against  the  claim  of for 

damages. 

Foreman. 


[NOTE. — It  is  the  duty  of  the  jury  to  inspect  the  road  and  land  in 


ROADS 

question  unless  already  familiar  with  it  and  swear  any  witnesses  that 
the  owner  or  any  person  on  the  part  of  the  county  may  effer  as  to  their 
.opinion  of  the  damage  sustained.] 


ORDER  FOR  DAMAGES. 


Georgia, County. 

Office  of  Ordinary  of County. 

In  re claim  for  damages,  caused  by  opening  of 

new  road  through  his  land. 

It  appearing  to  the  court  that  the  question  of  damage  in  the 
above  stated  case  was  submitted  to  be  tried  by'  a  jury  of  free- 
holders, consisting  of ,  as  foreman,  and  eleven 

others,  on  the day  of ,  19.  .  .  .,  and  the  said  jury 

by  their  verdict  having  found  that  the  said will 

be  damaged  in  the  sum  of dollars  by  the  opening  of 

said  new  road  over  his  land ;  Ordered  that  the  said 

do  have  and  recover  of  the  county  of the  sum  of 

dollars  for  his  damages,  and  the  county  treasurer  of 

said  county  is  hereby  directed  to  pay  over  the  said  amount  to 
the  said 

This day  of ,  19 

Ordinary. 


[NOTE. — If  the  ordinary  is  satisfied  that  the  damages  found  transcend 
the  utility  of  the  proposed  road,  or  that  part  of  it  to  which  the  verdict 
relates,  he  may  revoke  the  road  altogether,  or  order  the  same  altered, 
so  as  to  avoid  the  land  so  damaged  or  make  the  owner  an  offer  of  such 
compensation  as  the  ordinary  may  think  just.] 


NOTICE  TO  NEGLIGENT  OVERSEER.     §690. 


Georgia, County. 

To ,  Overseer  of  the  Road  Leading  from 

to ,  through  the Road  District : 

Whereas,  we  have  received  information  that  from  your  negli- 
gence and  inattention,  the  road  of  which  you  are  the  overseer 
is  now,  and  has  been  for  some  time  past,  in  bad  order  and  out 
of  repair,  you  are  hereby  notified  and  required  to  be  and  appear 
before  said  road  commissioners  at . ,  in  said  district, 


736  ROADS 

on  the day  of ,  19 .  .  .  . ,  to  answer 

your  default. 

Given  under  our  hands  and  official  sig- 
natures, this day  of .  .  .  .,  19.  .  .  . 


Commissioners. 


INSPECTORS  or  KOADS  AND  BEIDGES.     §§'729(8),  739-743. 


APPOINTMENT  or  ROAD  OVERSEERS.     §729(1). 


Georgia, County. 

Board  of  District  Commissioners, ,  19.  .  . 

Ordered,  that be,  and  he  is,  hereby  appointed 

overseer  of  the  public  road  passing  through  the road 

district  of county  [here  describe  the  road]. 

Said  overseer  is  hereby  invested  with  all  the  authority  given 
to  such  overseers  and  is  required  to  do  and  perform  all  the  things 
and  duties  of  overseers  of  said  road.  Said  overseer  is  allowed 

the  hands  of  said , and  [name 

the  several  hands  apportioned  to  him]. 


Commissioners. 


SUMMONS  TO  APPEAR  BEFORE  GRAND  JURY.     §731. 


Georgia, County. 

In  the  Superior  Court  of  said  County. 

.Term,  19 

To : 

The  grand  jury  of  said  county,  on  the.  ....  .day  of , 

19 .  .  .  . ,  at  the  regular term  of  the  Superior  Court. 

having  presented  you  for  neglect  of  duty  as  road  commissioner, 


ROADS  737 

you  are  hereby  commanded  to  be  and  appear  at  the  next  Supe- 
rior Court  for  said  .county,  to  be  held  on  the.  . .  .day  of , 

19.  .  .,  to  answer  said  accusation. 

This day  of ,  19.  ... 

Clerk  Superior  Court County. 


NOTICE  TO  DEFAULTER.     §§701-703. 


Georgia, County. 

To " : 

It  being  made  to  appear  to  me  that  you  have  failed  to  pay 

the  commutation  road  tax  when  demanded  by ,  the 

officer  appointed  by  the  authorities  to  make  such  demand,  and 
have  failed  and  refused  to  appear  at  the  time  and  place  ap- 
pointed to  work,  when  summoned  and  notified  by ,  the 

officer  whose  duty  it  was  to  give  said  summons  and  notice  by 
the  rules  of  the  authorities  having  charge  of  the  public  roads 
(or  who  shall  fail  or  refuse  to  do  faithful  work  as  ordered  by 
the  officers  in  charge  of  the  work  when  he  has  appeared),  you 
are  hereby  commanded  to  be  and  appear  before  me,  at  my  office 
in  the  courthouse  in  said  county,  at  nine,  o'clock,  A.  M.,  on  the 

day  of ,  19.  .  .  .,  and  then  and  there  show 

cause  why  you  should  not  be  fined  or  imprisoned  for  such  fail- 
ure. Let be  served  with  a  copy  of  this  order  at 

least  ten  days  before  said  time  of  trial. 

This day  of ,  19 

Ordinary. 


COMMITMENT  BY  COMMISSIONER. 


Georgia, County. 

To  the  Jailer  of  said  County : 

having  been  arrested  and  brought  before  us 

and  convicted  of  default  of  duty  as  a  road  hand  of  the 

road  district  of  said  county  and  by  us  to  be  imprisoned  in  the 

common  jail  of  said  county  for  the  full  term  of days,  you 

are  therefore  commanded  to  receive  the  said and 


738  ROADS 

him  safely  keep  and  confined  in  the  common  jail  of  said  county 
from  the  day  he  is  delivered  to  you. 

Given  under  our  hands  and  official  signatures,  this day 

of ..,19.... 


Commissioners. 


COMPLAINT  BY  CITIZEN  AGAINST  ROAD  COMMISSIONER.     §732. 


Georgia, County. 

To  the  Ordinary  [Judge  of  the  County  Court,  or  Board  of  Com- 
missioners of  Roads  and  Revenues]  of  said  County : 

1.  The  petition  of shows  that  he  is  a  citizen  of 

the road  district  of  said  county,  and  that 

and and are  road  commissioners  for  the 

road  district. 

2.  Petitioner  shows  that  said  commissioners  are  guilty  of 
neglect  of  [state  in  what  particulars  the  neglect  consisted]. 

3.  Petitioner  prays  that  a  summons  may  issue  in  writing,  di- 
rected to  such  defaulting  commissioners,  commanding  them  to 

be  and  appear  before ,  ordinary  of  said  county,  at  the 

usual  place  of  sitting  on  the day  of ,  19.  . .,  to 

answer  the  accusation  in  this  petition  above  contained  and  to 
show  cause,  if  any  they  have,  why  they  should  not  be  fined  or 
imprisoned  according  to  the  statute  in  such  case  made  and  pro- 
vided. 

Petitioner. 

Georgia, County. 

Personally  before  me,  the  undersigned,  came , 

the  petitioner  in  the  above  petition  named,  who  on  oath  says  that 
the  facts  set  forth  in  the  foregoing  petition  are  true. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

,  Ordinary. 


ROADS  739 

SUMMONS  OF  ORDINARY.     §732. 

Georgia, County. 

To : 

You  are  hereby  notified  to  be  and  appear  before  the  under- 
signed, the  ordinary  of  said  county,  at  the  usual  place  of  sitting, 

on  the day  of ,  19 ,  at  9  o'clock,  a.  m.,  to 

answer  the  accusation  contained  in  the  foregoing  petition,  and 
to  show  cause,'  if  any  you  have  or  can,  why  you  should  not  be 
fined  or  imprisoned  for  neglect  of  duty  as  therein  prayed  for. 
Herein  fail  not,  as  in  default  thereof  the  said ,  ordi- 
nary, will  proceed  according  to  the  statute  in  such  cases  made 
and  provided. 

This day  of ,  19 

Ordinary. 


[NOTE. — A  copy  of  the  above  petition  and  summons  should  be  served 
by  the  sheriff  or  his  deputy  upon  the  commissioner  complained  against, 
at  least  twenty  days  before  the  day  of  hearing.] 


JUDGMENT  THEREUPON.     §§732,  733. 


Georgia, County. 

Office  of  the  Ordinary  of  said  County. 

Complaint  of ,  charging with  neglect 

of  duty  as  road  commissioner. 

It  appearing  to  the  court  that  on  the day  of , 

19.  .  .  ., ,  a  citizen  of -said  county,  filed  his  petition 

in  writing  to  the  ordinary  of  said    county  making    complaint 

against ,   and ,  road 

commissioners  appointed  for road  district  of  said 

county,  for  neglect  of  duty,  in  the  particulars  in  said  petition 

specified,  and  the  said , and , 

road  commissioners  as  aforesaid,  having  been  summoned  in  writ- 
ing, and  duly  served  according  to  law  with  such  summons,  call- 
ing upon  them  to  appear  before  the  undersigned  this  day,  to 

answer  the  accusation  in  said  petition  contained,  and  said 

having  failed  to  show  any  satisfactory  cause  why  they  should 
not  be  punished  as  aforesaid. 

It  is  ordered  that  said , and 

each  be  fined  in  the  sum  of dollars  [not  less  than  ten 


740  RULES  AGAINST  OFFICERS 

dollars  nor  more  than  two  hundred  dollars],  and  in  default  ol 

the  payment  of  the  fine  above  imposed,  that  the  said , 

and be  confined  in  the  common  jail  of 

said  county  for  the  space  of days,  as  provided  by  law. 

And  it  is  further  ordered  that  the  said , 

and be,  and  they  are,  hereby  removed  from  office. 

This day  of ,  19 

Ordinary. 


KULES  AGAINST  OFFICERS.     §§5341-5354. 


MONEY  RULE — DEMAND.     §5343. 


Georgia, County. 

To ,  of  said  County : 

I  hereby  make  demand  upon  you  for  the  money  collected  by 

you  upon  a  certain  fi.  fa.  in  favor  of against 

for dollars,  principal dollars, 

interest, dollars,  attorney's  fees,  and dol- 
lars, costs,  issued  from  the term,  19.  .  .  .,  of  the 

court  of  the district,  G.  M.,  said  county,  or  in  de- 
fault take  notice  that  I  shall  also  claim  of  you  twenty  per  cent, 
per  annum  interest  on  amount  due  on  said  fi.  fa. 

This day  of ,  19 

.Plaintiff  in  Fi.  Fa. 


AFFIDAVIT  AS  TO  SERVICE.     §5344. 


Georgia, County. 

Personally  comes. ,  who,  being  duly  sworn,  deposes 

and  says,  that  on  the day  of ,  19.  . .  .,  he  did 

personally  serve of  said  county,  with   a  written 

demand,  of  which  the  foregoing  is  a  copy. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 

,J.P. 


RULES  AGAINST  OFFICERS 

RULE  NISI.     §5346. 
(General  form.) 


Georgia, County. 

vs. 


The  foregoing  petition  against ,  of  said  count?, 

read  and  considered.  Ordered  that  he  show  cause  as  prayed. 

before  the. court  of  said  county,  on  the day 

of ,  19.  .  .^..  Let  a  copy  of  said  petition  and  of  this 

order  be  reserved  upon  the  said forthwith. 

This day  of ,  19 

j.  P. 


RULE  ABSOLUTE.     §5347. 


Georgia,    County. 


vs. 


The  defendant  in  the  above-stated  case,  having  been  duly 
served  with  a  copy  of  the  petition  filed  in  the  case  and  of  the 
rule  nisi,  and  having  failed  to  show  cause  as-  required,  ordered 
that  the  said  rule  be  made  absolute,  and  that  he  pay  to  the  plain- 
tiff instanter  the  amount  due  on  said  fi.  fa.,  to  wit, 

dollars  and  twenty  per  cent,  per  annum  interest  thereon,  and 
that  on  failure  to  do  so,  he  be  subject  to  execution  or  attach- 
ment, as  provided  by  law. 

This day  of ,19 


RULE  AGAINST  SHERIFF.     §5342. 


(State  the  case.) 

Georgia, County. 

To  the  Honorable ,  Judge  of  the  Superior  Court 

of  said  County: 

brings  this  his  petition  against , 

sheriff  of  said  county,  and  alleges : 


742  RCLES  AGAINST  OFFICERS 

i 

1.  On  the day  of ,  19.  .  .  .,  a  certain  fi.  fa. 

for dollars,   lately,   to  wit,   on   the day  of 

,  19.  .  .  .,  issued  from    the    Superior  Court  of    said 

county  in  favor  of  petitioner  against ,  was  placed 

in  the  hands  of  said  defendant  sheriff,  and  has  ever  since,  con- 
tinuously, been  in  his  hands. 

2.  The  said ,  sheriff  as  aforesaid,  has  had  said 

fi.  fa.  in  his  hands  long  enough  to  have  made  the  money  due 
thereon. 

3.  Petitioner  has  upon  more  than  one  occasion  pointed  out 
to  said  sheriff  property  of  the  defendant  in  said  fi.  fa.  more  than 
sufficient  to  satisfy  the  same  upon  which  to  levy  the  same. 

4.  Said  defendant  sheriff  has  never  yet  made  the  money 
upon  said  fi.  fa.,  nor  any  part  of  said  money. 

Wherefore,  petitioner  prays  a  rule  nisi  directed  to  the  said 
defendant  requiring  him  to  show  cause  why  he  should  not  pay 
over  to  petitioner  or  his  attorney,  instanter,  the  money  due  on 
said  fi.  fa.  or  why,  in  default  thereof,  he  should  not  be  attached 
for  a  contempt. 

Attorney  for  plaintiff  in  fi.  fa. 


ATTACHMENT. 


Georgia, County. 

To  the  Coroner  of  said  County : 

A  rule  absolute  having  at  the term,  19 .  .  .  . ,  of  the 

Superior  Court  of  said  county,  held  on  the day  of , 

19.  .  .  .,  been  granted    against ,  sheriff    of    said 

county,  requiring  him  to  pay  over  (instanter)  to 

or  his  attorney,  the  sum  of .  .» dollars,  principal,  the 

sum  of dollars,  interest  to  the  date  of  said  rule,  and 

the  further  sum  of dollars,  costs,  or  in  default  that 

he  be  attached,  and  he  having  made  default : 

You  are  therefore  commanded  to  arrest  the  body  of  the  said 

,   sheriff  as  aforesaid,   and  commit  him  to  the 

common  jail  of  said  county,  there  to  be  confined  and  safely  kept, 
without  bail,  until  he  purge  himself  of  the  contempt  aforesaid, 


SALES  743 

by  pay  ing  over  the  aforesaid  sums  of  money  to  the  said , 

or  his  lawful  attorney. 

Witness  the  honorable ,  judge  of  said  court,  this 

day  of ,  19 

Judge  of  Superior  Court. 


SALES. 


PRIVATE,   §§4106-4143.     PUBLIC,   §§6051-6077. 


CONTRACT  AND  ESCROW  DEED.     §4183. 


Georgia, County. 

This  contract  made  and  entered  into  this day  of , 

19 .  .  . ,  between ,  party  of  the  first  part,  and 

,  party  of  the  second  part,  each  party  being  of 

said  State  and  county,  witnesseth: 

Whereas,  said  party  of  the  first  part  has  this  day  entered  into 
an  agreement  with  party  of  the  second  part,  whereby  party  of 
the  first  part  sells  to  the  said  party  of  the  second  part,  the  fol- 
lowing described  property :  [here  describe  the  property] ,  at  and 

for  the  price  and  sum  of  $ ,  of  which  $ is 

this  day  in  hand  paid  to  the  party  of  the  first  part  by  the  party 
of  the  second  part,  and  the  remainder,  to  wit,'  the  sum  and 

amount  of  $ '.  .,  is  to  be  paid  on  or  by  the day  of 

,19.... 

!N"ow  the  party  of  the  first  part  herewith  this  day  makes  and 
executes  his  escrow  deed  in  and  to  said  property  and  conveying 
the  same  to  the  said  party  of  the  second  part,  and  by  agreement 

of  the  parties,  said  deed  is  to  be  deposited  with ...» 

the  cashier  of bank,  to  be  held  by  him  in  escrow, 

and  when  the  said  party  of  the  second  part  shall  pay  to  said 

cashier  $ ,  the  remainder  of  said  purchase  money, 

then  in  such  case  the  said  cashier  is  to  deliver  said  escrow  deed 
to  said  party  of  the  second  part,  and  said  sale  and  conveyance 
is  to  be  then  and  thereby  fully  completed  and  consummated. 
But  if  the  said  party  of  the  second  part  shall  fail  within  said 
time,  that  said  deed  is  to  remain  in  escrow  as  agreed,  to  pay  to 


744  SALES 

the  said  cashier  the  said  remainder  of  the  said  purchase  money, 
then  in  such  case  the  party  of  the  first  part  shall  have  the  right 
to  take  said  deed  out  of  escrow  and  to  keep  the  money  hereto- 
fore paid  by  party  of  the  second  part  to  him  as  part  of  the  pur- 
chase money,  and  all  right  and  interest  of  the  said  party  of  the 
second  part  in  and  to  this  contract  shall  terminate  and  be  at  an 
end.  This  contract  is  made  in  triplicate,  each  one  of  which 
shall  be  original  evidence  of  this  contract.  In  witness  whereof 
said  parties  have  hereunto  set  their  hands  and  affixed  their  seals, 
the  day  and  year  first  above  written. 

........................  .......  (L.S.) 


Signed,  sealed  and  delivered  in  the  pres- 
ence of: 

..J.  P. 


(NOTE:     Deed  placed  in  escrow  can  be  drawn  as  ordinary  warranty 
deed.) 


EECEIPT  OF  HOLDER  FOR  ESCROW  DEED. 


Georgia, County. 

<• ,19...-. 

I, ,  cashier  of bank,  of  the  city 

of ,  in  the  state  of ,  having  read  over 

the  foregoing  contract  and  agreement,  hereby  acknowledge  re- 
ceipt of  said  deed,  and  agree  and  undertake  to  hold  said  deed 
in  escrow  according  to  the  terms  therein  set  out,  and  to  deliver 
said  deed  upon  the  conditions  only  as  therein  agreed.  My  re- 
ceipt is  made  in  triplicate,  each  one  of  which  shall  be  original 
evidence  of  the  same,  and  I  acknowledge  that  I  have  received 
one  of  the  triplicate  copies  of  said  contract  between  the  parties. 

Cashier. 


PETITION  TO  SELL  PERISHABLE  PROPERTY.     §6068. 


Georgia, County. 

To ,  Judge  of  the  Superior  Court: 

The  petition  of shows  to  your  Honor  the  follow- 
ing facts : 

1.     That  a  fi.  fa.  issued  from  the  superior  court  of  said  county 


SALES  745 

in  favor  of  petitioner  against ,  at  the 

term,  19 .  .  .  . ,  of  said  court,  and  the  same  has  been  levied  by  the 
sheriff  of  said  county  upon  certain  property  which  is  liable  to 
deteriorate  in  value,  and  there  is  attendant  expense  in  keeping 
the  same,  to  wit  [here  set  out  and  describe  the  property] . 

2.  Petitioner  shows  that  defendant  in  fi.  fa.  has  failed  to 
replevy  said  property,  and  the  same  now  remains  in  the  hands 
of  the  said  sheriff. 

Wherefore,  petitioner  prays  that  your  Honor  grant  an  order 
requiring  the  defendant  to  show  cause  before  your  Honor,  after 
three  days'  notice  to  him,  why  an  order  should  not  be  passed 
authorizing  the  sheriff  to  sell  said  property  after  having  adver- 
tised the  same  for  ten  days  as  provided  by  law. 

Attorney  for  plaintiff  in  fi.  fa. 


AFFIDAVIT. 


Georgia, County. 

Personally  came  before    the    undersigned     attesting  officer, 

,  the  subscriber,  who,  being  duly  sworn,  on  oath 

says  that  the  facts  and  things  stated  in  the  foregoing  petition  are 
true. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19.... 


ORDER  TO  SHOW  CAUSE. 


Office  of  Judge  of  Superior  Court. 

At  Chambers, ,  19 .... 

The  foregoing  petition  having  been  considered,  it  is  ordered 

that ,  the  defendant  in  fi.  fa,,  show  cause  before 

me  at  my  office  in  the  courthouse  on  the day  of , 

19 ,  at  nine  o'clock,  a.  in.,  why  the  prayer  of  petition  should 

not  be  had  and  allowed,  and  an  order  made  for  the  sale  of  s:iM 
property  as  prayed. 

,linli;-f  Siipei'ior  Court. 


746  SALES 

ORDER  FOR  SALE.     §6068. 


Office  of  Judge  of  Superior  Court. 

At  Chambers,    ,  19 .... 

The  above  and  foregoing  petition  coming  on  for  a  hearing, 
and  it  appearing  that  said  property  is  liable  to  deteriorate  in 
value,  and  that  there  is  expense  attending  the  keeping  of  the 
same,  and  the  defendant  in  fi.  fa.  having  been  served  with  a 

copy  of  the  petition  and  my  former  order days  before 

this  hearing,  it  is  considered,  ordered  and  adjudged  that , 

the  sheriff  be,  and  he  is,  hereby  directed,  after days'  ad- 
vertisement according  to  law,  to  sell  said  property  at  the  court- 
house door  at  the  usual  place  of  sheriff's  sales. 

Judge  Superior  Court. 


OPTION  TO  PURCHASE. 


Georgia, County. 

Received  of the  sum  of dollars, 

and  in  consideration  thereof  I  hereby  agree  and  bind  myself  that 

if  the  said shall  at  any  time  within .  „ 

from  this  date  pay  to  me  the  sum  of dollars,  then, 

upon  the  payment  of  said  amount,  I  bind  myself,  my  heirs  and 

assigns,  to  execute  to  said ,  or  his  assigns,  good 

and  sufficient  warranty  titles  in  and  to  the  following  described 
lands :  .  .... 


This  option  to  purchase  shall  expire  if  the  money  is  not  paid 

within from  this  date. 

In  testimony  whereof,  I  have  set  my  hand  and  affixed  my  seal, 

this day  of ,  19.  ... 

[L.S.] 


Conditional  sale.  Contract  here  between  a  sewing  machine  company 
and  another  was  held  to  be  a  contract  of  conditional  sale  with  title 
reserved  in  the  company,  though  the  contract  is  called,  throughout, 
a  "rent  contract,"  or  a  "lease,"  and  all  the  payments  to  be  made 
were  designated  as  "rent.""  17  App.  517  (87  S.  E.  719). 

Description  of  land  in  contract  of  sale  is  sufficiently  definite  where 
premises  are  so  described  as  to  indicate  the  grantor's  intention  to 
sell  a  particular  lot  of  land.  145/65  (1)  (88  S.  E.  960).  Contract 
which  does  not  identify  articles  is  not  contract  for  sale  of  goods. 


SCIEE  FACIAS  747 

128/698  (58  S.  E.  200).  Thing  sold  is  not  identified  where  pur- 
chaser had  the  right  to  select  one  or  more  of  four  kinds  of  roofing 
12  App.  537,  539  (77  S.  E.  829). 

Duress.  Plea  must  state  fact  constituting  duress  1  ADD  800  (57 
S.  E.  944). 

Option  to  buy,  contract  for,  not  unilateral.  123/190  (57  S.  E.  285). 
Effect  of  paper  reciting  that  A.  had  rented  certain  lands  of  B., 
"with  the  refusal  to  buy  it,"  etc.  123/201  (51  S.  E.  436). 

Resale.  Notice  of  intention  to  resell  need  not  state  time  and  place. 
126/834  (56  S.  E.  88). 


SCIRE  FACIAS 

§§5609-5611,  5692,  5975-5979,  6514. 


ORDER  FOB  Sci.  FA.  TO  ISSUE.     §5609. 


(State  the  case.) 

Complaint  in Superior  Court. 

Returnable  to  the Term,  19. . .  .,  of  said  county. 

It  appearing  to  the  court  that ,  the  defendant  in 

the  above-stated  case,  departed  this  life  on  the day  of 

,  19.  . .  .,  and  that  his  death  has  been  suggested  of 

record,  and  that ,  on  the day  of , 

19.  . .  .,  duly  qualified  as  executor  of  the  estate  of  said  deceased, 
it  is  .ordered  that  the  writ  of  scire  facias  issue  requiring  said 

to  show  cause  before  me,  at  judge's  chambers,  at 

nine  o'clock  on  the day  of ,  19.  . .  ;,  at  the  court 

house  of  said  county,  why  he  should  not  be  made  a  party  to 
said  cause. 

This day  of ,19 


(NOTE:     The  rule  may  issue  either  in  term  time  or  vacation,  and 
the  answer  thereto  may  be  heard  in  term  of  vacation.     §5601). 


WRIT. 

(State  the  case.) 

Complaint  in Superior  Court. 

Returnable  to  the Term,  19 ,  of  said  county. 

To  All  and  Singular  the  Sheriffs  of  said  State: 

The  defendant, ,  having  departed  this  life  dur- 


748  SCIRE  FACIAS 

ing  the  pendency  of  the  above-stated  case,  and  his  death  having 
been  suggested  of  record,  and having  duly  quali- 
fied as  executor  of  the  estate  of  said  deceased,  on  the 

day  of ,  19 .  .  .  .  ;  you  are,  therefore,  hereby  commanded 

to  serve  the  said with  a  copy  hereof,  and  let  him 

be  and  appear  before  the  undersigned  in  vacation,  at  chambers, 

on  the day  of ,  19.  .  .  .,  at  nine  o'clock,  a.  m., 

to  show  cause,  if  any  he  has,  why  he  should  not  be  made  a  party 
defendant  to  said  action  and  the  case  proceed  against  him  as 
executor  as  aforesaid. 

Witness  the  honorable .,  judge  of  the  Superior 

Court  for  said  county,  this day  of ,  19 .... 

Clerk, 


(NOTE:  The  clerk  should  make  out  copies  of  the  sci.  fa.,  which 
should  be  served  personally  by  the  sheriff  of  the  county  in  which 
the  party  to  be  notified  may  reside,  twenty  days  before  the  date  fixed 
for  the  hearing,  if  at  chambers,  or  twenty  days  before  the  sitting  of  the 
court  to  which  it  is  made  returnable,  and  the  original  returned  to  the 
clerk  of  the  court  from  which  it  issued;  an  original  and  copy  shall 
issue  in  each  county  in  which  any  party  to  be  notified  may  reside. 
§5976.  If  the  defendant,  or  party  to  be  notified,  resides  out  of  this 
State  he  should  be  served  with  scire  facias,  by  publication  in  some 
public  gazette  of  this  State  twice  a  month  for  two  months  previous 
to  the  term  of  the  court  to  which  sci.  fa.  is  made  returnable.  §5977.) 


ORDER  MAKING  EXECUTOR  A  PARTY  DEFENDANT. 


(State  the  case.) 

Complaint  in Superior  Court. 

Returnable  to  the Term,  19 .... 

It  appearing  to  the  court  that ,  executor  of  the 

estate  of ,  deceased,  has  been  duly  served  with  a 

scire  facias  in  the  above-stated  case,  requiring  him,  as  executor 
as  aforesaid,  to  show  cause  before  me  in  vacation  at  judge's  cham- 
bers, on  the day  of ,  19.  .  .  .,  at  nine  o'clock, 

a.  m.,  why  he  should  not  be  made  a  party  defendant  in  the  said 
cause;  and  no  sufficient  cause  appearing  why  he  should  not  be 

made  a  party  defendant  in  lieu  of ,  the  deceased 

defendant ; .  it  is,  therefore,  ordered  that  said , 

executor  as  aforesaid,  be,  and  he  is,  hereby  made  a  party  defend- 


SCIBE  FACIAS  749 

ant,  and  said  cause  is  ordered  to  proceed  against  him  as  such 
executor. 

This day  of ,  19 

J.S.C..  '.'.C.' 


PETITION  FOR  SCIKE  FACIAS  TO  REVIVE  DORMANT  JUDGMENT. 


Georgia, .County. 

To  the  Superior  Court  of  said  County : 

1.  The  petition  of shows  that  on  the 

day  of ,  19.  .  .  .,  being  at  the  regular term, 

19.  .  .  . ,  of  the  Superior  Court  of  said  county,  a  judgment  was 

entered  in  his  favor  against for  the  sum  of 

dollars,  attorney's  fees,  and dollars,  costs  of 

suit,  upon  which  said  judgment  afterwards,  to  wit,  on  the 

day  of ,  19.  . .  .,  execution  was  issued  by  the  clerk  of 

said  Superior  Court,  \vhich  execution  was  placed  in  the  hands 
of  the  sheriff  of  said  county,  who  returned  said  execution,  to 

wit,  on  the day  of ,  19.  . .  .,  with  an  entry  of 

nulla  bona  endorsed  thereon. 

2.  Petitioner  shows  that  more  than  seven  years  have  elapsed 
since  said  entry  was  endorsed  on  said  execution,  and  that  said 
judgment  is  now  dormant. 

3.  Petitioner  shows  that  the  principal,  interest,  attorney's 
fees  and  costs,  for  which  judgment  was  returned  and  execution 
issued  as  aforesaid  have  not  been  paid  nor  any  part  thereof. 

Wherefore,  petitioner  prays  that  writ  of  sci.  fa.  may  issue  and 

be  served  on  said ,  requiring  him  to  show  cause 

at  the  next  term  of  the  Superior  Court  to  be  held  in  and  for  said 
county,  on  the day  of ,  19 ,  why  said  judg- 
ment should  not  be  revived. 

Attorney  for  Petitioner. 


WRIT.     §5978. 

(State  the  case.) 

Scire  Facias  to  revive  dormant  judgment. 

Returnable  to  the Term,  19 

To  All  and  Singular  the  Sheriffs  of  said  State: 

The  defendant, ,  is  hereby  required,  personally 


750  SCIKE  FACIAS 

or  by  attorney,  to  be  and  appear  at  the  next court  to 

be  held  in  and  for  said  county,  on  the day  of ,  19 .  . , 

to  show  cause  why  a  certain  judgment,  rendered  in  favor  of  the 

said on  the day   of ,  19.  .  .  .,  at   the 

regular term,  19.  .  .  .,  of Superior  Court 

against  said for  the  sum  of dollars, 

principal, dollars,  interest  to  date  of  judgment, 

dollars,  attorney's  fees,  and dol- 
lars, costs  of  suit,  should  not  be  revived  as  provided  by  law,  as 
in  default  of  sufficient  cause  the  court  will  proceed  as  to  justice 
shall  appertain. 

Witness  the  honorable ,  judge  of  the  said  court, 

this day  of ,  19.  ... 

"Clerk'.' 


ORDER  REVIVING  DORMANT  JUDGMENT.     §5978. 


(State  the  case.) 

Judgment  rendered  the term,  19.  .  .,  of  the  Supe- 
rior Court.     Principal,  $....;  interest,  $ ....  to  date  of 

judgment ;   attorney's  fees,   $....;   and  costs  of  suit, 

$• 
.... 

It  appearing  to  the  court  in  the  above-stated  case  that  scire 
facias  was  duly  issued  and  served  upon.  . ,  the  de- 
fendant in  said  judgment  named,  and  no  sufficient  cause  having 
been  shown  why  said  judgment  should  not  be  revived,  it  is  hereby 
considered,  ordered  and  adjudged  by  the  court  that  said  judg- 
ment be,  and  the  same  is,  hereby  revived,  for  the  sum  of 

dollars,  principal, dollars  interest  to  date  of  judgment, 

dollars,  attorney's  fees,  and dollars,  costs  of 

suit,  with  lien  from  this  date,  and  let  execution  issue  accord- 
ingly. Ordered  further,  that  plaintiff  do  have  and  recover  of 

the  said  defendant  the  sum  of dollars,  the  cost  of  this 

proceeding. 

This day  of ,  19 

Judge Superior  Court. 


Amendment  to  scire  facias  to  conform  to  rule  nisi,  by  substituting 
city  court  for  superior  court,  in  the  recital  of  the  condition  of  the 
bond,  was  proper.  17  App.  691  (87  S.  E.  1096). 


SET-OFF  AND  RECOUPMENT  751 

SET-OPF  AND  RECOUPMENT. 

§§4339-4353,  5668-5673. 


PLEA  OF  SET-OFF. 


(State  the  case.) 

And  now  comes  the  defendant  in  the  above-stated  case  and  for 
plea  says : 

That  at  the  time  plaintiff  commenced  the  above-stated  action 
against  the  defendant,  said  plaintiff  was,  and  still  is,  indebted 

to  the  defendant  in  the  sum  of dollars,  besides  interest 

upon  the  open  account,  a  copy  whereof 'is  hereto  attached,  and 
defendant  prays  that  said  sum  may  be  set  off  against  the  plain- 
tiff's demand,  in  diminishment  thereof  pro  tanto. 

[Or,  defendant  prays  that  said  sum  may  be  set  off  against 
plaintiff's  demand,  and  that  he  may  recover  judgment  against 
the  plaintiff  for  the  amount  of  the  excess  of  his  said  demand  over 
that  the  plaintiff  sued  on.] 

Attorney  for  Defendant. 


PLEA  OF  RECOUPMENT. 


(State  the  case.) 

And  now  comes  the  defendant  in  the  above-stated  case,  and 
for  plea  says : 

1.  That  on  the day  of ,  19.  . . .,  the  plain- 
tiff sold  and  delivered  to  the  defendant bushels  of  corn, 

the  price  of  which  is  the  subject-matter  of  this  action,  at  and 

for  the  sum  of dollars  per  bushel,  as  stated  in  the 

above  petition. 

2.'  That  said  contract  was  in  writing,  a  copy  of  which  is 
hereto  attached,  marked  "Exhibit  A,"  said  corn  being  intended 
to  be  used  by  the  defendant  as  seed  corn  with  which  to  make 
his  crop  for  the  year  19.  .  .  .,  and  the  plaintiff  being  expressly 
notified  of  the  special  use  to  wrhich  said  corn  was  to  be  applied. 

(a)  That  said  plaintiff  impliedly  warranted  said  corn  to  be 
merchantable  and  reasonably  suited  to  the  use  intended. 

3.  Defendant  avers  that  supposing  said  corn  to  be  sound  and 
merchantable  and  reasonably  suited  to  the  use  intended,  defend  - 
ant  did,  in  due  season  plant  said  corn,  having  carefully  and  skill- 


752  SHERIFFS 

fully  prepared  his  ground  for  that  purpose ;  that  said  corn  was 
old,  damaged  and  unsound,  and  that  owing  to  its  damaged  con- 
dition it  failed  to  come  up,  or  yield  any  crop,  but  that  the  same 
was  wholly  lost  to  the  defendant. 

(a)  Defendant  shows  that  he  incurred  a  cost  of 

dollars  in  plowing  and  preparing  his  fields  for  the  reception  of 
said  seed  corn,  and  for  labor  in  planting  the  same. 

(b)  That  the  rent  of  the  said  defendant's  land,  which  per- 
force lay  idle  for  said  year  of  19.  .  .  .,  because  of  the  failure 
to  raise  a  crop  thereon  from  said  seed  corn  so  planted  as  afore- 
said was  worth  the  sum  of dollars,  all  to  the  damage  of 

the  defendant  in  the  aggregate  sum  of dollars,  for 

which  sum  defendant  prays  judgment  over  against  said  plaintiff. 

Attorney  for  Defendant. 


Assignment.  Debt  of  plaintiff  to  another  than  defendant  can  not  be 
pleaded  without  alleging  assignment.  18  App.  414,  415  (89  S.  E. 
339). 

Distress  warrant,  plea  of  set-off  to  alleging  against  plaintiff  in  such 
warrant  items  of  indebtedness  apparently  independent  of  the  rent 
contract  and  not  alleged  to  be  connected  with  it,  is  not  allowable. 
143/181  (84  S.  E.  438). 

Plea.  Set-off  must  be  pleaded;  agreement  of  plaintiff  to  allow  a  cer- 
tain credit  on  account  could  not  be  proved  without  such  plea. 
18  App.  447  (89  S.  E.  533).  Set-off  may  be  contested  without  plea 
in  reply.  18  App.  258  (89  S.  E'.  381).  Plea  must  specify  items  of 
damage  which  defendant  seeks  to  set  up  by  way  of  recoupment. 
118/836  (45  S.  E.  675).  Allegations  in  plea  of  recoupment  must 
be  specific  and  certain.  124/671  (53  S.  E.  205). 


SHERIFFS. 

§§4902-4920,  6026-6050. 


JURY  SUMMONS,  SUPERIOR  COURT. 


Georgia, County. 

To : 

By  virtue  of  the  precept  to  me  directed,  you  are  hereby  com- 
manded to  appear  before  the  presiding  judge, , 

at  the  next  Superior  Court,  to  be  held  at  the  court  house,  in  the 
city  of ,  in  and  for  the  county  of ,  on 


SHERIFFS  753 

the day  of ,  19.  .  .,  at o'clock  in  the  fore- 
noon of  that  day,  to  be  sworn  as  a  petit  juror. 

Sheriff. 


JURY  SUMMONS,  CITY  COURT. 


Georgia, County. 

To : 

By  virtue  of  the  precept  to  me  directed,  you  are  hereby  com- 
manded to  appear  before  the  presiding  judge,  honorable 

at  the  next  city  court,  to  be  held  at  the  court  house,  in  the  city 

of ,  in  and  for  the  county  of ,  on  the .... 

day  of ,  19.  . .,  at o'clock,  in  the  forenoon  of 

that  day,  to  be  sworn  as  a  petit  juror. 

''Sheriff.' 


JURY  SUMMONS  FOR  COURT  OF  ORDINARY. 


Georgia, County. 

To : 

By  virtue  of  the  precept  to  me  directed,  you  are  hereby  com- 
manded to  appear  before  the  presiding  judge,  honorable 

at  the  ordinary's  court,  to  be  held  at  the  court  house,  in  the  city 

of ,  in  and  for  the  county  of ,  on  the.  . .  . 

day  of ,  19.  . .  .,  at o'clock that  day,  to  be 

sworn  as  a  juror. 

Sheriff. 


CERTIFICATE  AS  TO  BAILIFF'S  SERVICES.  • 


This  is  to  certify,  that has  served  as  bailiff  upon 

the  present  term  of  the  Superior  Court  of county 

days,  to  wit :  on  the 

of ,  19.  .  .  .,  and  that  no  other  certificate  has  been 


754  SHERIFFS 

issued  for  the  same.     This day  of ,  19.  . .  . 

Deputy  Sheriff. 
Approved : 

j.  s.  a.          !!c.' 


SERVICE  OF  NOTICE  OF  LEVY  ON  LAND. 


I  have  this  day  served .  . ,  the  defendant  and  ten- 
ant in  possession,  with  a  copy  of  notice  of  this  levy 


This day  of ,19 

Deputy  Sheriff. 


ADVERTISEMENT  OF  SALE  OF  LAND  LEVIED  ON.     §§6062,  6063. 


Will  be  sold  at  the  court  house  door  in  said  county  on  the  first 

Tuesday  in ,  19.  .  .  . ,  within  the  legal  hours  of  sale, 

to  wit:  all  that  certain  tract  [describe  the  land  levied  on],  with 
improvements  thereon,  said  land  levied  on  as  the  property  of 

,  to  satisfy  an  execution  issued  on  the day 

of ,  19.  . .,  from  the court  of 

in  said  county,  in  favor  of against 

This day  of ,19 

"Sheriff.' 


PAUPEK  AFFIDAVIT  OF  PLAINTIFF,  AS  TO  INABILITY  TO  PAY  AD- 
VERTISEMENT FEES.     §6064. 


Georgia, County. 

""I     Fi.  fa.  returnable  to 

(State  the  case.)  \-   term> l9'  '  •>Pri™Pal>  *•  •;  •  j  in' 

terest,  $ ;  attorney  s  fees, 

J     $ ;  and  costs,  $ 

In  person  before  the  undersigned,  came ,  who 

on  oath  says  that  he  desires  the  above-stated  fi.  fa.  to  proceed 
against  the  property  of  the  above-named  defendant,  and  that 


SHERIFFS  755 

owing  to  his  poverty  he  is  unable  to  pay  the  costs  of  the  adver- 
tisement. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


(Official  Designation.) 


ENTRY  WHERE  PROPERTY  is  CLAIMED. 


having  claimed  the  property  described  in  the 

foregoing  levy  and  his  claim  having  been  sustained,  the  said  levy 
is  dismissed. 

This day  of ,19 

Sheriff. 


ENTRY  WHERE  PROPERTY  WAS  EXEMPTED. 


The  defendant  in  fi.  fa.  having  caused  the  property  described 
in  the  foregoing  levy  to  be  set  apart  under  the  homestead  and 
exemption  laws  of  this  State,  and  having  exhibited  to  me  a  cer- 
tified copy  of  the  schedule  of  the  property  so  set  apart,  the  said 
levy  is  therefore  dismissed. 

This day  of ,19 

Sheriff. 


SHERIFF'S  BILL  OF  SALE. 


,Ga., ,19... 

vs.  r  In court  of 

No. Term,  19... 

Mr 

Bought  of ,  Sheriff 

At  public  sale,  sold  under  and  by  virtue  of  a  fi.  fa.  issued  in 
above  stated  case,  the  following  property,  to  wit : 


SHERIFF'S  DEED. 
(See  ante,  page  403.) 


756  SHEKIFFS 

RECEIPTS. 


Georgia, County. 

After  due  and  legal  advertisement  as  required  by  law,  the 
property  described  in  the  attached  levy  was  exposed  for  sale  at 

public  outcry  before  the  court  house  door,  in  city  of ..'..." , 

county,  Georgia,  on  the  first  Tuesday  in , 

19.  .  ,  .,  within  the  legal  hours  of  sale,  when  and  where  the  same 

was  knocked  down  to ,  for  the  sum  of 

dollars,  he  being  the  highest  and  best  bidder,  and  the  receipt  of 
said  sum  is  hereby  acknowledged. 

This *. ..,  19 

Deputy  Sheriff. 

Received  of .,  sheriff,  the  sum  of 

dollars 

This ,  19 

Plaintiff's  Attorney. 

Appropriated  the  following  sums  to  the  payment  of  costs  and 

expenses :  Clerk's  cost, dollars ;  sheriff's  services  on 

fi.  fa.,  dollars;  sheriff's  commission  on  the  sale  of 

the  property,  dollars ;  sheriff's  deed  to  property, 

dollars ;  sheriff's  levy, dollars ;  advertis- 
ing fee, dollars ;  total, dollars. 

This '...,  19.... 

Deputy  Sheriff. 

Received  of ,  sheriff,  the  sum  of 

dollars  in  full  of  the  clerk's  cost  on  this  fi.  fa. 
This ,  19 

"c.  s.'c. 

Appropriated  the  sum  above  mentioned  to  the  payment  of 
sheriff's  cost  and  expenses  on  this  fi.  fa. 

Deputy  Sheriff. 

Deed  made  to  above  named  purchaser 

This ,  19 


Sheriff. 


TAX  AND  TAXATION  757 

ENTRY  OF  PAYMENT  BY  SHERIFF  WHERE  SECURITY  DESIRES  TO 
CONTROL  Fi.  FA. 


Received  of ,  as  the  security  of ,  the 

sum  of dollars,  being  the  principal,  interest,  attor- 
ney's fees,  and  all  costs  due  on  the  within  fi.  fa. 

This day  of ,19 

Sheriff'.' 


ENTRY  OF  DISMISSAL  ON  ORDER  OF  PLAINTIFF. 


The  foregoing  levy  dismissed  by  the  order  of  the  plaintiff. 
This day  of ,19 

Sheriff. 


TAX  AND  TAXATION.     §§504-540,  862-885,  914-1262. 


ORDER  LEVYING  TAX  FOR  COUNTY  PURPOSES.    §§513,  514. 


Georgia, County. 

By ,  ordinary  of  said  county,  sitting  for  county 

purposes. 

[Or  by  (set  out  names  of  county  commissioners),  commis- 
sioners of  roads  'and  revenues  for"  said  county,  sitting  for  county 
purposes.] 

It  is  hereby  ordered  that cents  on  the  $100  of  the 

taxable  property  of  said  county  as  per  digest  of  19.  ...  be,  and 
the  same  is,  hereby  levied,  and  that  the  same  be  collected  by  the 
tax  collector,  for  the  following  purposes,  to  wit: 

1 cents  on  the  $100  to  pay  the  legal  indebted- 
ness due,  or  to  become  due  during  the  year  19.  ...  or  past  dur. 

2 cents  on  the  $100  to  build  or  repair  court- 
house or  jail,  bridges  or  ferries,  or  other  public  improvements, 
according  to  contract. 

3 cents  on  the  $100  to  pay  sheriffs,  jailers,  or 

other  officers'  fees,  that  they  may  be  legally  entitled  to,  out  of  the 
county. 

4 cents  on  the  $100  to  pay  coroners'  fees  that 

may  be  due  them  by  the  county  for  holding  inquests. 


758  TAX  AND  TAXATION 

5 cents  on  the  $100  to  pay  the  expenses  of  the 

county,  for  bailiffs  at  court,  non-resident  witnesses  in  criminal 
cases,  fuel,  servant's  hire,  stationery  and  the  like. 

6 cents  on  the  $100  to  pay  jurors  a  per  diem 

compensation. 

7 cents  on  the  $100  to  pay  expenses  incurred  in 

supporting  the  poor  of  the  county,  and  as  otherwise  prescribed 
\)y  law. 

8 cents  on  the  $100  to  pay  charges  for  educa- 
tional purposes,  to  be  levied  only  in  strict  compliance  with  the 
law. 

9 cents  on  the  $100  to  pay  the  principal  of  the 

public  debt,  falling  due  the  present  year,  and  to  provide  a  sink- 
ing fund  for  future  installments  for  the  bonded  debt  of  said 
county. 

(a)  cents  on  the  $100  to  pay  any  other  lawful 

charge  against  the  county  [specifying  what  the  charge  is.] 

Making  in  the  aggregate  the  said  sum  of cents  on 

the  $100  on  the  taxable  property  of  said  county,  for  county  pur- 
poses for  the  year  19.  ... 

This day  of ,19 

Ordinary. 

[Or  the  signature  of  the  several  county  commissioners  where 
that  tribunal  has  charge  of  county  matters.] 


OATH  OF  TAX  RECEIVER.     §1195. 


"I  swear  that  I  will  truly  and  faithfully  perform  the  duties 
of  the  receiver  of  the  returns  of  taxable  property,  or  of  persons 
or  things  specially  taxed  in  the  county  to  which  I  am  appointed, 
as  required  of  me  by  the  laws,  and  will  not  receive  any  return 
but  on  oath  or  affirmment,  and  will  before  receiving  returns  care- 
fully examine  each,  and  will  to  the  best  of  my  ability  carry  out 
all  the  requirements  made  upon  me  by  the  tax  law.  So  help 
me  God." 


NOTICE  BY  RECEIVER  OF  TAX  RETURNS.     §1197  (3). 


Georgia, County. 

The  undersigned,  receiver  of  tax  returns,  in  and  for  said 
county,  will  attend  at ,  on  the day  of , 


TAX  AND  TAXATION  759 

19 .  .  .  .,  in  the district,  G.  M.,  of  said  county,  for  the 

purpose  of  receiving  tax  returns  for  the  present  year. 
This day  of ,  19 

Tax  Receiver. 


[NOTE. — It  is  the  duty  of  the  receiver  to  give  ten  days'  notice  in 
writing  of  the  several  times  and  places  at  which  he  will  attend  in  the 
several  militia  districts  in  the  county  for  the  purpose  of  receiving  tax 
returns,  and  to  attend  at  such  places  at  least  three  times  in  the  time 
allowed  in  which  to  make  returns.  §1197  (3,  4).  And  also  to  keep  a 
standing  advertisement  as  to  the  day  or  days  when  he  will  be  at  the 
county  site  for  such  purposes.  §1197  (5).] 


OATH  OF  TAX-COLLECTOR.     §1206. 


"I,  the  undersigned,  tax-collector  of  the  county  of 

do  swear  that  I  will  faithfully  discharge  the  duties  required  of 
me  by  law  as  tax-collector,  and  that  I  will  search  out  and  make 
a  true  return  of  all  defaulters,  and  all  property  not  found  on 
the  tax  receiver's  digest,  or  not  returned  to  the  clerk  of  the 
superior  court  by  the  fifteenth  of  August,  and  that  I  will  pay 
over  all  taxes  collected  by  me,  as  required  by  law.  So  help  me 
God." 


NOTICE  BY  COLLECTOR  TO  TAXPAYERS.     §1211  (6). 


Georgia, County. 

The  undersigned,  the  tax-collector  of  said  county,  will  attend 

at ,  in  the district,  G.  M.,  on  the 

day  of ,  19.  .  .  .,  for  the  purpose  of  receiving  the 

taxes  due  in  said  district. 

This day  of ,19 

Tax  Collector. 


The  receiver  is  also  bound  to  give  ten  days'  notice  of  the  days  when 
he  will  be  at  the  court  house  for  the  purposes  of  receiving  taxes. 
§1211  (6). 


760  TAX  AND  TAXATION 

TAX-COLLECTOR'S  Fi.  FA.     §1229. 


Georgia, County. 

By ,  tax-collector  of  said  State  and  county. 

To  All  and  Singular  the  Sheriffs  and  Constables  of  this  State : 

You,  and  each  of  you,  are  hereby  commanded  that  of  the 
goods  and  chattels  (if  any  to  be  found),  otherwise  of  the  lands 

and  tenements,  of ,  you  cause  to  be  made  the  sum  of 

dollars,   the  amount  of  the  tax  due  the  State  of 

Georgia  by  said for  the  year  19.  .  .  .,  by  reason  of 

the  non-payment  of  the  tax  of  the  said ,  as  aforesaid, 

as  appears  to  me  from  the  digest  of  the  receiver  of  the  tax  re- 
turns.    And  the  sum  of dollars,  the  costs  and  charges 

incurred  by  the  said in  consequence  of  the  non- 
payment of  the  tax  aforesaid.     Herein  fail  not. 

This day  of ,19 

'  T.'C. 


RETURN  BY  THE  SHERIFF. 


No  personal  property  to  be  found  on  which  to  levy  this  fi.  fa. 
This day  of ,19 

'  'Sheriff. 


LEVY  ON  LAND. 


Levied  this  fi.  fa.  on  lot  of  land  [describe  it],  in  the 

district  of county,  as  the  property  of  the  defend- 
ant; and  have  given ,  the  tenant  in  possession, 

notice  of  said  levy. 

This day  of. ,19 ' 

'Sheriff. 


ADVERTISEMENT  OF  SHERIFF. 


Georgia, County. 

On  Tuesday  the day  of ,  19.  .  .  .,  will  be 

sold  at  the  courthouse  door,  between  the  lawful  hours  of  sale,  lot 


TAX  AND  TAXATION  T<51 

of  land  [describe  it],  in  the district  of  said  county, 

or  so  much  thereof  as  will  be  sufficient  to  satisfy  the  State  tax 

of for  the  year  19 .  .  .  . ,  amounting  to 

dollars,  principal, dollars  interest,  and 

dollars,  cost.     Said  lot  of  land  contains acres,  and  is 

•well  improved. 

This day  of ,  19 

Sheriff. 


TAX  DEED,  §$885,  1176. 


Georgia, County. 

This  indenture,  made  this  the day  of ,  19.  .  ., 

between v.,  commissioner,     appointed   by  board   of 

commissioners  of  roads  and  revenues  of  said  county,  at  the 

term,  19.  .  .,  sitting  for  county  purposes,  to  make  sale  of  certain 

lands  sold  for  taxes  due  the  county  of ,  and  bid  in 

and  held  by  said  county  for  one  year,  and  the  owners  having 

failed  to  redeem  the  same:  Now,  therefore,  I , 

commissioner  aforesaid,  having  advertised  according  to  law  the 
real  property  hereinafter  described,  did  put  up  and  expose  to 
sale  on  the day  of ,  19.  .  .  .,  before  the  court- 
house door  in  the  town  of , county,  be- 
tween the  legal  hours  of  sale,  the  following  real  property,  to  wit : 


•  Levied  on  and  sold  and  bid  in  by county,  on  the 

day  of ,  19 .  . . ,  as  the  property  of , 

under  the  tax  fi.  fa.  for  State  and  county  taxes  of  said 

for  the  year  19.  .  .,  when ,  being  the  highest  and 

best  bidder,  the  same  was  knocked  down  to at  and 

for  the  sum  of dollars. 

Now,  this  deed  witnesseth,  that  the  said ,  com- 
missioner, for  and  in  consideration  of  the  sum  of 

dollars  to  him  in  hand  paid,  at  and  before  the  sealing  and  de- 
livery of  these  presents,  the  receipt  whereof  is  hereby  acknowl- 
edged, the  said ,  commissioner  as  aforesaid,  does 

hereby  bargain,  sell  and  convey  unto  the  said all 

claim,  ownership  or  title  that  the  said  county  of 

may  or  does  have  in  and  to  the  said  above  described  real  prop- 
erty, as  heretofore  belonging  to  the  said 


Y62  TENDER 

In  testimony  whereof,  said ,  commissioner  afore- 
said, has  hereunto  set  his  hand  and  affixed  his  seal  the  day  and 
year  above  written. 

[Seal.] 

Commissioner. 
Signed,  sealed  and  delivered  in  presence  of 


Allegation  that  within  one  year  after  tax  said  plaintiff  tendered  to  one 
who  had  taken  title  under  the  purchaser,  "the  amount  of  the  pur- 
chase-price of  the  property  at  the  sale,  plus  ten  per  cent,  interest 
thereon  from  date,"  was  demurrable  in  that  it  did  not  show  the 
amount  of  the  purchase-price  or  of  the  tender;  so  also  allegation 
that  as  matter  of  fact  the  tender  was  of  almost  double  the  amount 
of  the  purchase-price,  in  that  it  did  not  show  the  amount  of  such 
tender.  145/652,  653  (7)  (89  S.  E.  821). 


TENDER.     §§4322-4325. 


PLEA. 

(State  the  case.) 

1.  And  now  comes  the  defendant  in  the  above  stated  case, 

and  for  plea  and  answer  says  that  he  owes  plaintiff 

dollars  on  the  account  [or  note]  sued  on,  and  no  more. 

2.  That  on  the day  of ,  19 .  .  .  . ,  in  the  store 

of  the  plaintiff,  at .  . ,  in  said  county,  before  the 

commencement  of  this  action,  defendant  tendered  said  amount 
to  the  plaintiff  in  legal  tender  notes  of  the  currency  of  the 
United  States  [or  in  gold  and  silver  coin  of  the  United  States] 
in  payment  of  said  sum,  which  tender  was  refused. 

3.  Defendant  avers  that  he  has  always  been,  and  is  still, 
ready  and  willing  to  pay  said  sum  to  the  plaintiff,  and  now  ten- 
ders it  and  has  the  same  in  court  [or  now  pays  the  same  into 
court],  and  this  the  defendant  is  ready  to  verify. 


Alternative  tender.  Allegation  in  regard  to  tender  by  plaintiff  to  de- 
fendant of  "either  of  said  mentioned  amounts"  (two  amounts 
previously  stated)  was  vague  and  indefinite  as  to  whether  plaintiff 
tendered  each  of  these  amounts  or  made  an  alternative  tender. 
141/825  (3)  (82  S.  E.  132). 


TIMBER  AND  TURPENTINE  763 

Evidence  of  a  tender  of  a  cash  payment  and  notes  for  property  was 
admissible  to  show  plaintiffs  right  to  property,  without  formally 
pleading  tender.  139/334  (77  S.  E.  172). 

Specific  performance.  Mere  statement  in  prayer  of  offer  and  willing- 
ness on  part  of  plaintiff  to  pay  balance  due  for  a  half  interest  in 
land  did  not  amount  to  an  allegation  of  tender,  or  present  suffi- 
cient excuse  for  failure  to  make  tender,  so  as  to  furnish  a  basis  for 
a  prayer  for  specific  performance.  141/114  (2-a)  (80  S.  B,  625). 

Time.  Plea  should  show  time  of  making  tender  and  a  continuing  and 
present  readiness  to  pay.  54/498. 


TIMBER  AND  TURPENTINE.    §§1815-1843. 


TIMBER  LEASE. 


Georgia, County. 

This  indenture,  made  this day  of ,  19 . . .  . , 

between ,  of  the  county  of ,  and 

the  State  of ,  of  the  first  part,  and , 

of  the  county  of ,  and  State  of. ,  of  the 

second  part: 

Witnesseth,  that  the  said  part.  .  of  the  first  part,  for  and  in 
consideration  of  the  sum  hereinafter  mentioned,  ha.  .  granted, 
bargained,  demised,  sold  and  leased,  and  by  these  presents  do.  . 
grant,  bargain,  demise,  sell  and  lease  to  the  said  part.  .  of  the 

second  part, heirs  and  assigns,  all  and  singular,  the 

timber  suitable  for purposes,  growing  on  the  follow- 
ing described  lots  of  land,  to  wit : t 


The  said  part.  .  of  the  second  part  paying  to  the  said  part.  .  of 
the  first  part  the  following  sum  for  the  use  and  privilege  of  said 
timber,  the  receipt  whereof  is  hereby  acknowledged,  to  wit: 

And  it  is  expressly  understood  and  agreed 

by  and  between  the  parties  hereto  that  the  said  part.  .  of  the 
second  part  is  to  have  free  use  and  enjoyment  of  the  timber  fw 
the  purposes  aforesaid  in  the  said  lots  of  land  for  and  during 

the  term  of years  from  the.  ....  .day  of x 

19.... 

the  said  part.  ,  of  the  first  part,  .......  .heirs,  execu-. 


764:  TIMBER  AND  TURPENTINE 

tors  and  administrators,  the  free  an'd  uninterrupted  use  and 
enjoyment  of  said  timber  for  the  time  aforesaid  and  for  the 
purpose  aforesaid,  unto  the  said  part.  .  of  the  second  part, 

heirs,  executors,  administrators  and  assigns,  against, 

the  said  part .  .  of  the  first  part,  heirs,  executors,  administrators 
and  assigns,  against  the  said  part.  .  of  the  first  part,  heirs, 
executors,  administrators  and  all  and  every  person  or  persons 
whatever,  shall  and  will  warrant  and  defend  by  virtue  of  these 
presents. 

In  witness  whereof,  the  said  part.  .   of  the  first  part  ha.  . 

hereunto  set hand  and  affixed seal  the  day 

and  year  first  above  written. 

[SEAL.] 

[SEAL.] 

[SEAL.] 

Signed,  sealed  and  delivered  in  presence 
of: 


TURPENTINE  LEASE. 


Georgia, County. 

This  indenture,  made  this day  of ,  19.  . ., 

between ,  of  the  county  of and 

State  of ,  of  the  first  part,  and ,  of 

the  county  of and  State  of ,  of  the  second 

part,  Witnesseth,  that  the  said  part!  .  of  the  first  part,  for  and 

in  consideration  of  the  sum  of dollars,  to 

in  hand  paid  at  and  before  the  sealing  and  delivery  of  these 

presents,  the  receipt  whereof  is  hereby  acknowledged, 

ha .  .  granted,  bargained,  leased  and  conveyed,  and  do .  .  by  these 
presents  grant,  bargain,  lease  and  convey,  unto  the  said  part.  . 

of  the  second  part,   heirs  and  assigns,  at  the  rate 

of ,  all  of  the  timber  upon  the  following  described 

tract  of  land  for  the  purpose  of  boxing,  working  and  otherwise 
using  said  timber  for  turpentine  purposes : 


TIMBER  AND  TURPENTINE  765 

To  have  and  to  hold,  box,  work  and  otherwise  use  said  timber 
for  turpentine  purposes  unto  the  said  part.  .  of  the  second  part, 
heirs  and  assigns.  And  it  is  hereby  expressly  cove- 
nanted and  agreed  that  the  said  part.  .  of  the  second  part  may 
commence  boxing,  working,  or  otherwise  using  the  said  timber 
for  turpentine  purposes,  or  any  portion  thereof,  at  any  time  that 
the  said  part.  .  of  the  second  part  may  desire,  and  shall  have 
the  right  to  continue  to  box,  work,  or  otherwise  use  the  said 
timber  and  every  other  portion  thereof  for  the  full  term  of 
three  (3)  years,  beginning,  with  reference  to  each  portion  of 
the  timber,  from  the  time  only  that  the  boxing  and  working  of 
each  portion  is  commenced,  it  being  the  intention  of  the  parties 
that  this  lease  shall  continue  to  operate  until  all  of  the  timber 
and  each  and  every  part  thereof  has  been  boxed,  worked  and 
otherwise  used  for  turpentine  purposes  for  the  full  period  of 
three  (3)  years.  And  it  is  hereby  further  covenanted  and  agreed 

that  the  said  part .  .  of  the  second  part, heirs  and  assigns, 

shall  have  the  free  and  unrestricted  .right  to  enter  upon,  occupy 
and  use  the  said  land  for  the  purpose  of  boxing,  working  and 
otherwise  using  the  timber  thereon  for  turpentine  purposes,  as 
aforesaid,  during  the  continuance  of  this  lease.  And  it  is  further 
covenanted  and  agreed  that  said  part.  .  of  the  second  part  may 
have  the  right  at  any  time  to  assign  this  lease  in  whole  or  in 
part,  and  that  any  assignee  of  this  lease  shall  have  the  same  right 
of  assignment,  and  that  all  the  rights  and  privileges  of  said 
part .  .  of  the  second  part  shall  vest  in  whomsoever  may  succeed 
to  the  interest  hereby  conveyed  to  said  part .  .  of  the  second  part. 

And  the  said  part.  .  of  the  first  part  for heirs,  executors 

and  administrators,  the  said  granted  and  leased  timber  with  the 
right  to  box,  work  and  otherwise  use  the  same  for  turpentine 

purposes  unto  the  said  part.  .  of  the  second  part, heirs 

and  assigns,  will  forever  warrant  and  defend. 

In  witness  whereof,  the  said  part.  .  of  the  first  part  ha. . 
hereunto  set hand  and  seal,  the  day  and  year  first  above 

written. 

(SEAL) 

(SEAL) 

Signed,  sealed  and  delivered  in  the  pres- 
ence of: 


766  TROVER 

TROVER.     §§4483,  4484,  4514-4517. 


ACTION  IN  TROVER. 


Georgia, County. 

To  the  Superior  Court  of  said  County: 

The  petition  of shows : 

First.     That of  said  county  is  in  possession 

of  certain  property,  to  wit : 

of  value  of dollars,  to  which  your  petitioner  claims 

title. 

Second.     That  said refuses  to  deliver  the 

above  described  property  to  your  petitioner  or  pay  him  the 
profits  thereof. 

Third.     That  the  yearly  value  of  said  property  is 

dollars. 

Wherefore,  petitioner  pra*ys  that  process  may  issue  requiring 

the  said to  be  and  appear  at  the  next  superior 

court  of  said county  to  answer  petitioner's  complaint. 

Petitioner's  Attorney. 


BAIL  AFFIDAVIT. 


Georgia, County. 

In  person  appeared  before  the  undersigned  authority 

-. .  .who  on  oath,  says  that  he  is  about  to  commence  an 

action  of  trover  against ,  of  said  county, 

returnable  to  the  next term  of  the  court  of  said 

county,  to  recover  the  following  property,  to  wit : 

,  the  same  being  the  property  of  petitioner,  and  of 

the  value  of dollars;  that  said  property  is  now  in 

the  possession,  custody  and  control  of  the  said 

and  that  he  has  reason  to  apprehend  that  said  -property  will  be 
eloigned  and  moved  away,  and  will  not  be  forthcoming  to  answer 
the  judgment  that  may  be  made  in  said  case ;  that  he  claims  for 

the  hire  of  said  property  from  the day  of to 

the day  of the  sum  of dollars, 


TROVER  Y67 

and  that  he  does  verily  and  bona  fide  claim  said  described 
property. 

Sworn  to  and  subscribed  before  me,  this 
the day  of ,  19 


(Official  designation.) 


PROCESS. 


Georgia, County. 


vs. 


To  the  Sheriff  of  said  County,  or  his  Legal  Deputies : 

The  defendant, ,  is  hereby  required  per- 
sonally or  by  an  attorney,  to  be  and  appear  at  the  next 

court,  to  be  holden  in  and  for  said  county  on  the day 

of next,  then  and  there  to  answer  the  plaintiff's 

complaint,  to  which  this  process  is  annexed,  as  in  default  thereof 
the  court  will  proceed  as  to  justice  shall  appertain. 

Witness  the  honorable .,  judge  of  said  court, 

this  the day  of ,  19.  ... 

,  Clerk. 


SHERIFF'S  RETURN. 


I  have  this  day  served  the  defendant, ,  per- 
sonally with  a  copy  of  the  within  writ,  this  the day 

of ,19.... 

Sheriff County,  Ga. 

-ORr- 

I  have  this  day  served  the  defendant, ,  with 

a  copy  of  the  within  writ  by  leaving  the  same  at  the  residence 
of  the  defendant. 

This day  of ,  19 

Sheriff, County,  Ga. 


768  TROVER 

BAIL  BOND  FOR  PLAINTIFF. 


Georgia,  ....... County. 

We, ,  as  principal,  and , 

as  security,  acknowledge  ourselves  bound  unto 

in  the  sum  of dollars,  subject  to  the  following 

conditions : having  instituted  his 

action  returnable  to  the  next  term  of  the court  of 

said  county,  for  the  recovery  of  certain  personal  property,  to 

wit :    , 

and  of  the  value  of dollars,  and  required  bail  of 

said ,  and ,  of  said  county, 

having  seized  said  property,  and  the  said having 

failed  to  give  the  bond  required  by  law  in  such  cases  provided, 

and  the  said desiring  to  take  said  property  into 

his  possession.     Now,  should  said produce  or 

cause  to  be  produced  and  forthcoming  the  said  property  to  answer 
the  judgment  that  may  be  entered  in  said  case,  and  shall  well 
and  truly  pay  the  eventual  condemnation  money,  whatever  it 
may  be,  then  this  bond  to  be  void. 

Witness  our  hands  and  seals,  this  the day  of , 

19.... 

,  Principal  (SEAL) 

,  Security     (SEAL) 

Executed  in  the  presence  of  and  approved 

by 

Sheriff. 


BAIL  BOND  FOR  DEFENDANT. 


Georgia, County. 

We, ,  as  principal,  and ,  as 

security,  acknowledge  ourselves  jointly  and  severally  bound  unto 

,  his  heirs  and  assigns,  in  the  sum  of 

dollars,  for  the  payment  of  which  we  bind  our- 
selves, our  heirs,  executors  an$  administrators,  by  these  presents. 

Signed,  sealed  and  dated  this  the day  of . .  . , , 

19 

The  condition  of  the  above  obligation  is  as  follows : 

having  instituted  his  action  against 

for  the  recovery  of  certain  personal  property,  to  wit : 

. ,  and  of 


TROVER  769 

the  value  of dollars,  and  the  hire  of  said 

property  from  the day  of to  the day 

of ,  of  the  alleged  value  of dollars, 

which  action  is  returnable  to  the  next  term  of  court  of  said 
county,  and  he  having  made  oath  that  he  has  reason  to  believe 
that  said  property  will  be  eloigned  and  moved  away,  and  will 
not  be  forthcoming  to  answer  the  judgment  that  may  be  made 

in  said  case.     Now,  should  the  said produce 

or  cause  to  be  produced  and  forthcoming  the  said  above  described 
personal  property,  to  answer  the  judgment  that  may  be  made  in 
said  case,  and  shall  well  and  truly  pay  the  eventual  condemna- 
tion money,  whatever  it  may  be,  then  this  bond  to  be  void,  else 
of  force. 

,  Principal  (L.  S.) 

,  Security     (L.  S.) 

Executed  in  the  presence  of  and  approved 

by  me 

Sheriff. 


JUDGMENT  ON  ELECTION  OF  PLAINTIFF  TO  TAKE  AN 
ALTERNATIVE  VERDICT. 


(State  the  case.) 

Whereupon  it  is  considered,  ordered  and  adjudged  by  the 

court  that ,  the  plaintiff  in  the  above  stated 

case,  do  have  and  recover  of ,  the  defendant 

therein,  the  sum  of dollars  and cents, 

principal  debt,  and dollars  and cents, 

costs  of  suit ;  which  said  principal  debt  may  be  discharged  upon 
the  delivery  of  the  property  in  controversy  to  the  plaintiff  within 
davs  from  this  date. 

This "day  of ,  19 

Plaintiff's  Attorney. 


JUDGMENT  ON  THE  ELECTION  OF  PLAINTIFF  TO  TAKE 
PROPERTY  RECOVERED. 


(State  the  case.) 
,      Whereupon,  it  is  considered,  ordered  and  adjudged  by  the 

court  that ,  the  defendant  in  the  above-stated 

case,  deliver  to.' ,  the  plaintiff  therein,  the 


770  TRUSTS  AND  TRUSTEES 

property  in  controversy ;  and  it  is  further  ordered  and  adjudged 
that  the  said  plaintiff  do  have  and  recover  of  the  said  defendant 

the  sum  of dollars  and cents  for  costs. 

This day  of .,  19 

Plaintiff's  Attorney. 


Amendment.  Defect  in  petition  in  that  it  did  not  set  out  with  suffi- 
cient specification  the  articles  of  personalty  sued  for  was  cured 
by  amendment  here.  145/674  (1)  (89  S.  E.  747).  Petition  here 
which  prayed  for  judgment  for  value  of  property  with  interest 
from  date  of  unlawful  conversation  was  an  action  ex  delicto,  and 
could  not  be  changed  by  amendment  into  an  action  ex  contractu. 
145/847  (90  S.  E.  63).  Where,  by  an  amendment,  defendant  struck 
from  his  answer  all  admissions  dispensing  with  proof,  burden  was 
upon  plaintiff  to  show  either  demand  and  refusal,  or  conversion,  by 
defendant.  17  App.  529  (1)  (87  S.  E.  808).  Amendment  tendering 
sum  as  due  defendant,  not  allowable,  when.  127/488  (56  S.  E.  622). 

Cause  of  action  stated,  where  petitioner  alleged  possession  by  defend- 
ant's ownership  by  plaintiff,  refusal  to  deliver  by  defendant,  and 
value  of  property,  and  identified  it.  123/257  (51  S.  E.  314) ;  125/827 
(54  S.  E.  697). 

Demand  for  property  was  implied  from  allegation  of  refusal  to  deliver 
same.  15  App.  678,  679  (5-a)  (84  S.  E.  165).  Not  necessary  to 
allege  that  plaintiff,  before  suit,  demanded  possession  of  defendant 
and  that  defendant  refused  to  comply,  where  petition  alleges  that 
defendant  is  in  possession,  and  it  does  not  appear  that  he  lawfully 
acquired  such  possession.  139/736  (78  S.  E.  123). 

Title.  Petition  containing  no  averment  that  title  was  not  in  defendant, 
or  that  defendant  was  not  entitled  to  possession,  or  that  plaintiff 
had  either  the  title  or  right  of  possession,  no  cause  of  action  was 
set  forth.  17  App.  469  (1)  (87  S.  E.  692). 


TRUSTS  AND  TRUSTEES.     §§3728-3791. 


APPLICATION  FOE  APPOINTMENT  OF  TRUSTEE. 


Georgia, County. 

To  the  Honorable ,  Judge  of  the  Superior 

Court  of  the Circuit : 

1.     The  petition  of ,  of  said  county,  shows 

that ,  her  husband,  on  the day  of 

-....,  19 .  .  .  . ,  purchased,  as  trustee,  from  one 

,  a  certain  tract  of  land  lying  in  said  county. 


TRUSTS  AND  TRUSTEES  771 

(a)     The  beneficiaries  named  under  said  trust,  were  peti- 
tioner, and and ,  her  children, 

as  will  more  fully  appear  by  reference  to  the  copy  of  the  deed 

executed  by  the  said to  petitioner's  husband, 

as  trustee  as  aforesaid,  which  is  hereto  attached  and  marked 
"Exhibit  A,"  and  made  a  part  of  this  petition. 

2.  Petitioner  shows  that  subsequently,  to  wit,  on  the 

day  of ,  19 .  . .  . ,  the  said ,  trustee 

as  aforesaid  under  due  authority  of  law,  sold  said  land  to  one 
for  the  sum  of '.....  dollars. 

3.  Petitioner  shows  that  said died  on 

the day  of ,  19 .  .  .  . ,  leaving  to  his  credit 

as  trustee  as  aforesaid  the  sum  of dollars  on 

deposit  in  the bank  of ,  the  same 

being  the  proceeds  of  the  sale  of  said  land. 

4.  That  at  the  time  of  the  death  of  the  said 

there  were  living,  the  children  of  petitioner,  to  wit :  [state  their 
names  and  ages] ,  and.  there  being  a  vacancy  in  the  trust,  it  is 
to  the  interest  of  the  said  estate  that  a  trustee  shall  be  appointed. 

5.  Petitioner  shows  that ,  of  said  county, 

is  a  suitable  and  proper  person  to  be  appointed  as  trustee,  and 
she  prays  an  order  appointing  him  trustee  for  her  and  her  said 
children,  of  the  fund  aforesaid,  and  to  hold  the  same  to  the  same 
uses  as  under  the  deed  executed  by  petitioner's  husband  to  the 
said was  set  out  and  declared. 

This day  of ,  19 

Petitioner's  Attorney. 


CONSENT  OF  BENEFICIARIES  TO  APPOINTMENT. 


Georgia, County. 

We,  the  undersigned,  the  beneficiaries  named  in  the  foregoing 

application,  unite  in  the  selection  of as  trustee, 

in  the  place  of ,  deceased. 

This day  of ,  19 


772  TRUSTS  AND  TRUSTEES 

ORDER  APPOINTING  TRUSTEE. 


•p     ^o-fft  ")  Application  for  appointment  of  trustee. 

[•  In  the  Superior  Court  of County, 

3       at  Chambers,  .  .  .  . ,  19.  ... 

Read  and  considered :  It  appearing  to  the  court  that  it  is  to 
the  interest  of  the  trust  estate  mentioned  in  the  foregoing  appli- 
cation that  a  trustee  shall  be  appointed  to  fill  the  vacancy 

occasioned  by  the  death  of 7 ,  and  it  further 

appearing  that is  a  suitable  and  proper  person 

to  be  appointed  as  such  trustee,  it  is  further  ordered  that  said 

be,  and  he  is,  hereby  appointed  trustee,  in 

accordance  with  the  terms  and  provisions  of  the  trust  deed  men- 
tioned in  the  foregoing  petition  and  attached  thereto,  upon  his 

giving  bond,  with  good  security,  in  the  sum  of 

dollars,  payable  to,  and  approved  by,  the  ordinary  of  said  county. 

And  upon  his  filing  such  bond,  the  said is 

directed  and  authorized  to  take  charge  of  the  funds,  standing  to 

the  credit  of ,  as  trustee,  deceased,  in  the  bank 

of ,  and  to  administer  the  same  according  to  the 

law  and  the  terms  of  the  trust.    Let  these  proceedings  be  returned 

tc  the  clerk  of  the  Superior  Court  of  the  county  of , 

and  be  recorded  in  the  book  of  minutes  of  said  court. 

J.S.C..  ..C. 


(NOTE:  If  cestui  que  trustent  are  minors,  they  must  be  served  by  the 
sheriff  with  a  copy  of  the  petition  and  order  nisi  calling  on  them  to 
show  cause,  and  guardian  ad  litem  appointed  for  each  of  them  before 
the  order  is  taken  upon  the  trustee.) 


BOND  OF  TRUSTEE. 


Georgia, County. 

Know  all  men  by  these  presents,  that  the  undersigned,.  .  .  .  .  . 

,  as  principal,  and .  .  . , and , 

as  securities,  are  held  and  firmly  bound  unto , 

ordinary  of  said  county,  and  his  successors  in  office,  in  the  sum 

of dollars,  for  the  true  payment  of  which  the 

undersigned  bind  themselves,  their  heirs  and  assigns,  firmly  by 

these  presents.     Signed,  sealed  and  dated  this day 

of ,  19.  ...     The  condition  of  the  foregoing 


TRUSTS  AND  TRUSTEES  773 

obligation  is  as  follows:     Should  the  said well 

and  truly  perform  all  his  duties  as  trustee  of and 

and agreeably  to  law,  and  the  order 

of  his  appointment  as  before  set  forth,  then  this  bond  to  be  void, 
else  of  force. 

,  Principal   [SEAL] 

,  Security     [SEAL] 

,  Security     [SEAL] 

Executed  in  the  presence  of  and  approved 

by 

Ordinary. 


APPLICATION  FOR  SALE  OF  TRUST  PROPERTY  AND  REINVEST- 
MENT OF  TRUST  FUNDS.    §§3T55-3T65. 


Georgia, County. 

To  the  Honorable ,  Judge  of  the  Superior 

Court  of  said  County: 
The  petition  of respectfully  shows : 

1.  That  heretofore,  to  wit,  on  the day  of , 

19 .  .  .  . , ,  .  . ,  then  of  the  county  and  State  of 

,  executed  and  delivered  to  petitioner  his  deed  for 

a  certain  tract  or  parcel  of  land  [describe  the  land  as  set  out  in 
the  deed,  or  will,  as  the  case  may  be,],  to  be  held  by  petitioner 
in  trust  for  the  sole  use,  benefit  and  advantage  of  [set  out  the 
names  of  the  beneficiaries],  as  will  more  fully  appear  by  refer- 
ence to  the  copy  of  said  trust  deed  [or  will]  hereto  attache  I, 
marked  "Exhibit  A,"  and  made  a  part  of  this  petition. 

2.  That  the  beneficiaries  of  said  trust  are  as  follows:  [set 
out  their  names  and  ages,  and  places  of  their  respective  rrn 
dences]. 

3.  That  petitioner  desires  to  sell  certain  of  said  property, 
covered  by  said  trust  deed  [or  will],  [here  describe  the  property 
desired  to  be  sold  for  reinvestment]. 

4.  Petitioner  shows  that  the  sale  of  the  said  lands,  and  the 

reinvestment  of  the  proceeds  thereof,  in is  to  the 

interest  of  the  beneficiaries  of  said  estate,  and  petitioner  presents 
the  following  reasons  as  justifying  and  requiring  the  change  of 
investment  now  sought:  [set  out  fully  the  reasons  for  making 
the  proposed  change]. 


774  TRUSTS  AND  TRUSTEES 

Wherefore,  petitioner  prays  an  order  authorizing  him,  as 
trustee  as  aforesaid,  to  sell  and  dispose  of  said  trust  property, 
either  by  public  or  private  sale,  as  may  seem  to  petitioner  best 
for  the  interest  of  the  said  cestui  que  trust,  and  that  petitioner 
may  be  permitted  to  invest  the  proceeds  of  the  said  sale  in  the 
purchase  of  the  property  hereinbefore  described  under  the  same 
conditions  and  limitations,  and  for  the  same  uses  and  trust 
imposed  by  the  deed  of  trust  [or  will]  as  aforesaid  [and  that  a 

guardian  ad  litem  be  appointed  to  protect  the  interest  of 

and hereinbefore  mentioned  in  this 

proceeding,  and  who  are  minors]. 

This day  of 


Petitioner's  Attorney. 


AFFIDAVIT  OF  TRUSTEE. 


Georgia, County. 

Personally  before  the  undersigned,  an  officer  authorized  to 

administer  oaths  in  this  State,  came ,  who  on 

oath  says  that  the  statements  in  the  foregoing  petition  are  true, 
and  that  in  his  opinion  the  disposition  of  the  trust  property  as 
therein  prayed  for  is  for  the  best  interests  of  the  cestui  que  trust. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


(Official  designation.) 


Descriptio  personae.  Suffix  to  signatures,  "Trustees  of  B.  S.  &  D.  of 
.Hebrews^  No.  52,"  is  but  descriptio  personae.  143/513  (1)  (85  S.  E. 
708).  Where  library  trustees  made  a  personal  loan  of  a  donation 
of  money  made  to  a  municipality  for  library  purposes,  taking  a  note 
payable  to  J.,  W.  and  M.,  "library  trustees,  their  successors,  or 
order,"  the  words  "library  trustees,"  in  suit  brought  by  the  payees 
in  their  own  name,  with  the  added  words  "librarv  trustees,"  were 
mere  words  of  description  and  surplusage.  145/768  (1)  (89  S.  E. 
840). 

Express  trust  must  be  in  writing,  but  petition  to  enforce  it  need  not 
allege  it  was.  121/548  (49  S.  E.  593). 

Mortgage.  Application  for  order  to  mortgage  need  not  contain  a  copy 
of  the  trust  deed  or  other  instrument  by  which  trustee  was  appoint- 
ed. 104/417  (30  S,  E.  895). 


TRUST  COMPANIES — USURY — WILLS  775 

TRUST  COMPANIES. 

(See  ante,  page  318.) 

USURY.    §§3427,  3428,  3436-3445. 

PLEA.  ^ 

(See  Interest  and  Usury,  ante,  p.  567.) 


WILLS.     §§3827-3928. 


SHORT  FORM  OF  WILL.    §§3846-3852. 


Georgia, County. 

I,  John  Doe,  of  said  county,  being  of  sound  and  disposing 
mind  and  memory,  do  make  this  my  last  will  and  testament, 
hereby  revoking  any  and  all  others  that  I  have  heretofore  made. 

ITEM  1.  It  is  my  will  and  desire  that  my  body  be  buried  in 
a  Christian-like  manner,  the  place  and  details  of  which  I  leave 
to  my  wife. 

ITEM  2.  It  is  my  will  and  desire  that  all  of  my  just  debts 
be  paid  as  soon  as  practicable  after  my  death. 

ITEM  3.  I  will,  bequeath,  and  devise  all  of  my  property, 
both  real  and  personal,  of  whatever  kind  and  wherever  situated, 
to  my  wife,  Mary  Doe,  to  be  hers  absolutely  and  in  fee  simple 
forever. 

ITEM  4.  I  hereby  make  my  wife,  Mary  Doe,  executrix  of 
this  will,  and  I  relieve  her  from  making  any  inventory  of  my 
property  or  appraisement,  or  from  giving  any  bond,  and  she  is 
required  only  by  this  will  to  probate  the  will,  and  she  is  further 
relieved  from  making  any  returns  of  her  acts  and  doings  to  any 
court  whatever. 

This day  of ,  19.  ... 

JOHN  DOE.     (SEAL). 

Declared,  published,  signed  and  sealed  by  John  Doe  as  his 
last  will  and  testament,  in  the  presence  of  the  undersigned  as 
witnesses,  he  first  signing  in  our  presence,  and  we  then,  at  his 
special  instance  and  request,  signing  in  his  presence  and  in  the 

presence  of  each  other.     This day  of ,  19 .... 

RICHARD  ROE.     , 
JOHN   SMITH. 
SAM  JONES. 


776  WILLS 

ANOTHER  FORM  OF  WILL. 


Georgia, County. 

I,  John  Doe,  of  said  State  and  county,  being  of  sound  and 
disposing  mind  and  memory,  do  make  this  my  last  will  and 
testament,  hereby  revoking  all  others  that  I  have  heretofore 
made. 

ITEM  1.  It  is  my  will  that  my  body  be  buried  in  a  decent 

and  Christian-like  manner  in  the cemetery  of  said 

county,  upon  the  lot  that  I  have  heretofore  provided. 

ITEM  2.  It  is  my  will  and  desire  that  my  just  debts  be  paid 
as  soon  as  practicable  after  my  death. 

ITEM  3.  I  will,  bequeath  and  devise  all  of  my  property,  both 
real  and  personal,  of  whatever  kind  and  wherever  situated,  to 
my  beloved  wife,  Mary  Doe,  for  her  use  and  benefit  for  and 
during  her  natural  life,  or  until  she  should  marry  again,  if  she 
should  so  wish,  and  she  has  the  right  to  sell,  borrow  money  on, 
dispose  of,  do  anything  in  reference  thereto  that  she  may  deem 
proper,  without  any  order  of  court,  and  without  the  consent, 
control  or  interference  with  her  by  any  other  person,  subject 
only  to  the  obligation  upon  her  to  pay  the  taxes,  keep  the  prop- 
erty insured  and  preserve  it  in  such  way  as  she  may  deem  best 
and  proper,  without  any  liability  to  any  other  person  for  waste 
or  mismanagement. 

ITEM  4.  At  the  death  of  my  said  wife,  or  at  the  time  she 
should  marry  again,  if  she  should  so  far  forget  my  memory  and 
wish  so  to  do,  it  is  my  will  and  desire  that  all  of  my  property, 
both  -real  and  personal,  not  disposed  of  by  my  said  wife  and 
not  used  by  her  under  the  provision  of  Item  3  of  this  will,  be 
sold  by  my  executor  hereinafter  named,  and  the  proceeds  of 
the  same  be  divided  between  my  said  wife  and  my  four  children, 
to  wit,  Sarah  Doe,  Richard  Doe,  Frank  Doe  and  Henry  Doe, 
share  and  share  alike,  under  this  provision  my  wife  and  each 
one  of  said  children  to  receive  one-fifth  of  my  estate,  and  in  the 
event  any  one  of  my  said  children  should  die  leaving  children, 
then  such  child  or  children  to  have  and  take  the  one-fifth  share 
going  to  its  parent,  per  capita,  as  between  themselves,  if  more 
than  one  child  of  such  deceased  parent. 

ITEM  5.  It  is  my  will  and  desire,  and  I  so  intend,  that  the 
provision  made  in  Item  3  of  this  will  for  my  wife,  and  the 
jnterest  therein  conveyed  to  my  wife,  shall  be  in  lieu  of  dower 
and  year's  support,  and  before  taking  under  said  item  I  enjoin 
my  wife  to  file  an  express  renunciation  of  her  right  to  dower 


WILLS  777 

and  a  year's  support,  and  in  the  event  that  she  should  fail  and 
refuse  so  to  do,  then  this  will  shall  be  effective  in  the  same  way 
and  to  the  same  extent  as  if  she  had  died  or  married  again,  and 
the  property  is  then  and  at  that  time  to  be  disposed  of  as'  pro- 
vided in  Item  4  of  this  will. 

ITEM  6.  I  hereby  name  and  appoint  my  wife,  Mary  Doe,  as 
executrix  of  this  will,  and  I  hereby  expressly  relieve  her  of 
making  any  inventory  or  appraisement  of  my  estate,  or  from 
giving  any  bond  or  making  any  returns  to  any  court,  and  all 
that  is  required  of  her  under  this  will  is  to  probate  the  same, 
and  then  enter  upon  and  take  charge  of  all  my  property,  as 
provided  in  Item  3  of  this  will. 

This day  of ,  19 

JOHN  DOE.     (SEAL). 

Signed,  sealed,  declared,  and  published  by  John  Doe  as  his 
last  will  and  testament,  in  the  presence  of  the  undersigned  as 
witnesses  thereto,  being  called  individually  and  specially  by 
John  Doe  as  witnesses  to  this  will,  he  first  signing  the  same  in 
our  presence,  and  we  then  signing  as  witnesses  in  his  presence 

and  in  the  presence  of  each  other.     This day  of 

,19.... 

RICHARD  ROE, 
SAM  JONES, 
FRANK  JONES. 


ANOTHER  FOJRM  OF  WILL. 


Georgia, County. 

I, ,  of  said  State  and  county,  being  of  sound 

and  disposing  mind  and  memory,  do  make  this  my  last  will  and 
testament,  hereby  revoking  and  annulling  all  others,  by  me 
heretofore  made. 

1.  I  desire  and  direct  that  my  body  be  buried  in  a  decent 
and  Christian-like  manner,  suitable  to  my  circumstances  and 
condition  in  life. 

2.  I  desire  and  direct  that  all  my  just  debts  be  paid  without 
unnecessary  delay,  by  my  executor  hereinafter  named  and  ap- 
pointed. 

3.  I  give,  bequeath  and  devise  to  my  wife, , 

the  lot  of  land,  with  the  improvements  thereon  situate  on 

street,  in  the  city  of ,  being  the  family  residence,  with 

all  the  rights,  members  and  appurtenances  to  the  said  lot  of 


T78  WILLS 

land  in  anywise  belonging,  free  from  all  charge  and  limitation 
whatever ;  to  her  own  proper  use,  benefit  and  behoof  forever, 
with  full  power  to  dispose  of  the  same  by  will  or  otherwise  as 
she  may  deem  proper.  I  also  give  and  bequeath  to  my  said  wife, 
in  the  same  unreserved  manner,  all  my  household  and  kitchen 
furniture  of  every  sort  whatsoever,  and  my  carriage  and  horses. 

4.  I  give,  bequeath  and  devise  to  my  said  wife,  for  and 

during  her  natural  life  my  five-story  brick  building  on 

street,  an  the  city  of ,  known  as  the  "Marble  Build- 
ing," giving  and  granting  to  my  said  wife  the  rentals  thereof, 
after  paying  all  expenses,  including  insurance  and  repairs  on 
said  building,  for  and  during  her  natural  life  as  aforesaid,  with 

remainder  over,  at  her  death,  to  my  son, ,  and 

my  daughter, ,  in  equal  parts,  share  and  share 

alike.     If  either  my  son  or  daughter  herein  mentioned  shall  die 
before  this  will  takes  effect,  leaving  no  wife  and  no  child  or 
children,  then  the  entire  estate  in  remainder  hereby  created  is 
to  go  to  the  survivor  of  them,  and  if  one  of  them  be  dead  leaving 
child  or  children,  such  child  or  children  are  to  take  per  stirpes 
in  lieu  of  their  deceased  parent. 

5.  I  give  and  bequeath  to  my  said  son, ,  my 

wearing  apparel,  guns,  gold  watch  and  chain,  and  all  other  of. 
my  personal  effects  of  the  like  kind,  to  be  his  absolutely  without 
accountability  in  the  general  distribution  of  my  estate. 

6.  I  give  and  bequeath  to  my  said  son, ,  and 

my  said  daughter, ,  all  of  the  residue  of  my 

estate,  both  real  and  personal  of  every  sort  soever,  not  herein- 
before specially  devised,  in  equal  shares,  share  and  share  alike. 

7.  I  hereby  constitute  and  appoint  my  wife, , 

the  sole  executrix  of  this  my  last  will  and  testament,  and  I 
expressly  confer  upon  her  power,  as  such,  to  administer  my 
estate,  excusing  her  from  giving  any  bond,  or  making  any  re- 
turns to  the  ordinary,  and  I  expressly  confer  upon  her  the  full 
authority  and  power  to  sell  any  part  of  my  estate,  not  herein- 
before specially  devised,  at  public  or  private  sale,  with  or  with- 
out notice,  as  she  may  deem  best,  and  without  any  order  of 
court,  making  good  and  sufficient  conveyances  to  the  purchaser 
and  holding  the  proceeds  of  the  said  sale  to  the  same  uses  and 
trusts  as  hereinbefore  declared  in  the  several  items  of  this  my 
will.     I  further  hereby  expressly  confer  upon  her  the  authority 
and  power  to  borrow  money  for  the  use  of  the  said  estate,  in 
any  instance  where  she  may  think  it  necessary  and  proper,  arid 
to  secure  the  same  by  lien,  mortgage,  security  deed,  or  trust 


WILLS  779 

deed,  OT  other  form  of  security  to  or  upon  any  part  of  my  estate, 
not  hereinbefore  specially  devised ;  this  she  may  do  without  the 
order  of  any  court. 

This day  of ,  19 

(SEAL) 

Signed,  sealed,  declared  and  published  by as 

his  last  will  and  testament,  in  the  presence  of  us,  the  under- 
signed, who  subscribe  our  names  hereto  in  the  presence  of  said 
testator,  after  he  had  signed  his  name  thereto,  and  at  his  special 
instance  and  request,  and  in  the  presence  of  each  other. 
This day  of ,  19.  ... 


CODICIL.     §3837. 


Georgia, County. 

Whereas,  I,  ,  did  on  the day  of 

,  19.  . .  .,  sign,  seal,  declare  and  publish  my  last 

will  and  testament,  in  the  presence  of , 

and ,  who  signed  the  said  will  and  testament  as 

witnesses. 

And  whereas,  I  am  desirous  of  adding  an  additional  bequest 
and  devise  in  the  said  will,  I,  therefore,  make  and  publish  this 
codicil  to  said  will  and  testament: 

1.  I  hereby  give,  bequeath  and  devise  unto , 

my  daughter  mentioned  in  my  will,  my  solitare  diamond  ring, 
and  five  shares  of  stock  in  the  Georgia  Railroad  and  Banking 
Company,  to  be  hers  absolutely,  without  accountability  in  the 
administration  and  distribution  provided  in  the  residuary  clause 
of  my  said  will. 

2.  In  the  event ,  my  said  wife,  after 

qualifying  as  executrix,  shall  marry,  or  depart  this  life,  then 

and  in  that  event  I  appoint ,  my  son,  sole 

executor  of  my  estate,  in  the  place  of  his  mother,  conferring 
upon  him  generally  the  same  authority  and  power  in  reference 
to  all  parts  of  my  said  estate  as  are  conferred  therein  upon  my 
said  wife. 

3.  The  special  bequests  and  devises  made  to , 

my  wife,  in  the paragraph  of  my  original  will,  I 

intend  and  declare  to  be  in  lieu  of  dower  and  year's  support,  in 


780  WILLS 

the  event  that  my  said  wife  should  elect  to  take  under  my  said 
will  and  codicil. 


(NOTE:  The  codicil  should  be  executed  with  the  same  formality,  as 
the  original  will.  It  is  not  necessary  that  the  witnesses  to  the  codicil 
be  the  same  persons,  but  the  attestation  clause  above  set  out  may  well 
be  followed,  in  tot  verb.) 


PROBATE  IN  COMMON  FORM.     §3855. 


PETITION. 


Georgia, County. 

To  the  Honorable ,  Ordinary  of  said  County : 

The  petition  of ,  a  resident  of  said  State, 

shows  that ,  late  of  said  county,  died  testate 

on  the day  of ,  19 .  .  .  . ,  after  having  made 

his  last  will  and  testament,  in  which  petitioner,  is  named  as 
executor.  Petitioner  produces  said  will  in  court,  and  prays  that 
the  same  may  be  admitted  to  record  upon  proof  thereof  in  com- 
mon form,  and  that  letters  testamentary  do  issue  to  him,  accord- 
ing to  the  statute  in  such  case  made  and  provided. 

This day  of ,  19 


AFFIDAVIT  OF  SUBSCRIBING  WITNESSES. 


Georgia, County. 

Before  me,  the  undersigned,  ordinary  of  said  county,  came 

,  whose  name  appears  as  a  subscribing  witness 

to  the  within  writing  purporting  to  be  the  last  will  and  testa- 
ment of ,  who,  being  duly  sworn,  on  oath  says 

that  he,  together  with and ,  on  the 

day  of ,  19.  .  .  .,  subscribed  the  said  will 

as  a  witness  thereto,  at  the  special  instance  and  request  of  the 

said ,  the  testator  therein,  and  in  his  presence, 

and  in  the  presence  of  each  other,  as  did  also  the  said 

arid ,  after  he,  the  said  testator,  had  signed  his 


WILLS  781 

name  thereto.     That  the  said ,  in  their  presence 

freely  and  voluntarily  signed  and  published  the  same  as  his  last 
will  and  testament,  and  at  the  time  of  said  signing  and  attesta- 
tion, he  was  of  sound  and  disposing  mind  and  memory. 

Sworn  to  and  subscribed  before  me,  this 

day  of .  .  .,   19 

,  Ordinary. 


ORDER  OF  PROBATE. 


In  Re  )  Probate  of  will  in  common  form. 
I  At  chambers. 

The  foregoing  petition  of ,  praying  probate 

in  common  form  of  the  will  of ,  deceased,  and 

further  praying  that  letters  testamentary  do  issue  to  him,  being 

supported  by  the  affidavit  annexed  thereto  of , 

one  of  the  witnesses  to  the  said  will,  and  the  contents  of  said 
petition  appearing  to  be  true,  it  is  ordered  by  the  court  that  said 
will  be  admitted  to  record  as  satisfactorily  proven  in  common 
form. 

Let  letters  testamentary  issue  to  the  said , 

the  executor  named  in  said  will,  upon  his  taking  and  subscribing 
the  usual  oath  of  office. 

This day  of ,  19.... 

Ordinary. 


PROBATE  OK  WIM,  IN  SOLEMN  FORM.     §§3856,  3859-3868. 


PETITION. 


Georgia, County. 

To  the  Honorable ,  Ordinary  of  said  County: 

The  petition  of ,  a  resident  of , 

in  this  State,  shows  that ,  late  of  said  county, 

died  in  said  county,  on  the day  of ,  19.  .  .  ., 

leaving  real  and  personal  property  therein,  after  having  made 


Y82       .  WILLS 

and  published  his  last  will  and  testament,  in  which  petitioner 
is  nominated  as  executor  thereof. 

2.  -  Petitioner  herewith  presents  said  last  will  and  testament 
of  said  deceased,  and  shows  that  the  following  named  persons 
are  the  heirs  and  all  the  heirs  of  said  testator,  to  wit:  [set  out 
the  names,  ages  and  places  of  residence  of  the  several  heirs,  and 
the  name  and  residence  of  his  widow,  if  any.] 

3.  Petitioner  prays  leave  to  prove  said  will  in  solemn  form, 

and  to  that  end  that , and , 

the  heirs  at  law  of  said  deceased,  late  of  said  county,  be  cited  to 
appear  at  the  next  court  of  ordinary  for  said  county  to  be  held 

on  the  first  Monday  in ,  19 .  . .  . ,  and  show  cause, 

if  any  they  have,  why  said  will  should  not  be*  proven  in  solemn 
form,  and  admitted  to  record  as  the  last  will  and  testament  of 
the  said ,  deceased,  and  why  letters  testamen- 
tary should  not  issue  to ,  the  petitioner, 

according  to  the  statute  in  such  case  made  and  provided. 


Petitioner. 


ORDER   DIRECTING   CITATION    TO    ISSUE.       §3859. 


The  petition  of -. ,  the  nominated  executor 

of ,  late  of  said  county,  deceased,  asking  for 

the  probate  of  the  will  of  the  said  testate  in  solemn  form,  having 
been  presented  -and  considered,  it  is  ordered  that  the  heirs  at 
law  named  therein,  to  \vit:  (Set  out  the  names  and  residences 

of  the  widow,  if  any,  and  the  heirs  at  law) ,  be  served 

with  a  copy  of  said  petition  and  this  order  at  least  ten  days 
before  the  next  term  of  this  court,  and  that  they  then  and  there 
show  cause,  if  any  they  have  or  can,  why  the  prayer  of  said 
petition  should  not  be  allowed  and  said  will  proven  in  solemn 
form,  as  prayed. 

Ordinary. 


[NOTE. — If  any  of  the  heirs  mentioned  in  the  petition  are  non-resi- 
dents, the  following  clause  should  be  added  to  the  order: 

And  let ,  a  non-resident  of  the  State  of  Georgia, 

be  served  by  publication  of  the  said  citation  once  a  week  for 

weeks,  in  the ,  a  newspaper  published  in  the  city  of 

State  and  county  aforesaid,  in  which  the  sheriff's 

advertisements  are  published.] 


WILLS  783 

CITATION. 


jn  j^e  •)  Court  of  Ordinary  of County. 

>-  Petition  for  probate  of  will  in  solemn 
3  form. 
To ,  heir  at  law : 

.  .  having  applied,  as  executor,  for  probate 

in  solemn  form  of  the  last  will  and  testament  of , 

of  said  county,  you,  as  one  of  the  heirs  at  law  of  said , 

being  a  non-resident  of  this  State,  are  hereby  required  to  be  and 
appear  at  the  court  of  ordinary  for  said  county  on  the  first 

Monday  in ,  19 .  .  .  . ,  when  said  application  for 

probate  will  be  heard,  and  show  cause,  if  any  you  have  or  can, 
why  the  prayer  of  the  petition  should  not  be  had  and  allowed. 

This day  of ,  19 

Ordinary,  and  ex  officio  C.  C.  O. 


GUARDIAN  AD  LITEM,  ORDER  APPOINTING.      §3860. 


Court  of  Ordinary. 

At  Chambers, ,  19 .... 

It  appearing  to  the  court  in  the  matter  of  the  petition  of .  .  . 

for  probate  in  solemn  form  of  the  last  will  and 

testament  of ,  deceased,  that 

heirs  at  law  of  said  deceased, minor 

and minor   have   no  regular  guardian,   and  that 

they  have  each  been  personally  served  by  the  sheriff  with  a  copy 
of  the  petition  and  order  of  citation :     It  is,  therefore,  ordered 

by  the  court  that be,  and  is  hereby,  appointed 

guardian  ad  litem,  to  represent  said  minors in  this 

litigation. 

This day  of ,19 

Ordinary. 


ACCEPTANCE  OF  APPOINTMENT. 


Georgia, County. 

Having  been  appointed  guardian  ad  litem,  to  represent. 


784  WILLS 

minor.  .  .in  the  matter  of  the  probate  of  the  last  will  and  testa- 
ment of ,  deceased,  in  said  court,  I  hereby  accept 

said  appointment,  and  I  agree  to  represent  said  minor.  .  in  said 
proceeding.     I  waive  all  further  service  or  notice. 
This day  of ,  19 


CAVEAT. 

Georgia, County. 

In  re.  petition  of for  probate  in  solemn  form 

of  the  will  of 

And  now  at  this  term  of  the  court  comes ,  an 

heir  at  law  of  said  deceased,  and  enters  his  caveat  to  the  above 
stated  petition,  and  objects  to  the  admission  to  record  of  said 
will,  upon  the  following  grounds,  to  wit: 

1.  For  that  said ,  at  the  time  of  making 

said  pretended  will  [and  codicil],  was  not  of  sound  and  dispos- 
ing mind  and  memory. 

2.  For  that  also,  the  said did  not  execute 

the  said  pretended  will   [and  codicil]   freely  and  voluntarily, 
but  was  moved  thereto  by  undue  influence  and  persuasions  over 
him  by and  it  is,  therefore,  not  his  will. 

3.  4,  etc.     (Here  state  any  and  all  grounds  of  caveat  plainly, 
fully  and  distinctly.     State  facts  and  not  conclusions  of  fact.) 

And  all  this  the  caveator  is  ready  to  verify. 


Attorney  for  Caveator. 


ORDER  PROBATING  WILL  IN  SOLEMN  FORM. 


Georgia, County. 

jn  j^  ~}  Court    of    Ordinary    of    said    County. 

[  Petition  of for  probate  in 

J       solemn  form  of  the  will  of 

The  above  stated  petition  coming  on  regularly  to  be  heard, 
and  it  appearing  that  the  parties  at  interest,  all  of  whom  are 
residents  of  this  State,  to  wit,  


WILLS  785 

and ,  the  heirs  at  law,  being  all  of  the  heirs  of 

said  deceased,  were  duly  served  personally  with  legal  notice  of 
said  application  and  the  time  of  hearing,  at  least  ten  days  before 
the  term  of  this  court,  at  which  said  notice  required  them  to 

appear  [or,  and  it  further  appearing  that ,  a 

party  at  interest,  and  a  non-resident  of  this  State,  was  duly 

served  by  publication  of  citation  once  a  week  for.  . ". weeks 

in  the newspaper,  a  newspaper  published  in  said 

county  in  which  the  sheriff's  advertisements  are  published],  and 
it  further  appearing  to  the  satisfaction  of  this  court  by  the  testi- 
mony of  all  the  subscribing  witnesses,  that  the  paper  offered  for 

probate  is  the  last  will  and  testament  of ,  as 

alleged  by  the  propounder  in  his  petition,  and  that  the  said 
,  the  testator,  was  of  sound  mind  and  dispos- 
ing memory  at  the  time  he  signed  and  executed  the  same,  and 
no  legal  and  sufficient  cause  being  shown  why  said  paper  should 
not  be  proven  and  admitted  to  record  as  the  last  will  and  testa- 
ment of  the  said  deceased  as  prayed : 

It  is,  therefore,  ordered  and  adjudged  by  the  court  that  the 
same  be  set  up  and  established  as  the  last  will  and  testament  of 
the  said  deceased,  and  be  admitted  to  record  as  such. 

Ordered  further  that  letters  testamentary  do  issue  to 

,  the  executor  named  in  said  will,  upon  his  taking 

the  oath  required  by  law. 

This day  of ,  19 

,  Ordinary. 


OATH  OF  EXECUTOR.     §3887. 


I,    ,  do  solemnly  swear  that  this  writing 

contains  the  true  last  will  of  the  within  named , 

deceased,  so  far  as  I  know  and  believe,  and  that  I  will  well  and 
truly  execute  the  same  in  accordance  with  the  laws  of  the  State. 
So  help  me  God. 


LETTERS  TESTAMENTARY. 


Georgia, County. 

To  Whom  it  may  Concern : 

Whereas,  at  the  regular  term  of  the  court  of  ordinary  for 


786  WILLS 

said  county  on  the day  of ,  19 ...  .r  the  last 

will  and  testament  of. ... ,  late  of  said  county, 

deceased,  was  duly  proven  and  admitted  to  record,  and  it  was 

ordered  that  letters  testamentary  issue  to ,  the 

executor  named  in  said  will,  upon  his  taking  the  oath  of  office ; 

and  the  said having  taken  said  oath,  these  are, 

therefore,  to  authorize  the  said ,  and  he  is 

hereby  authorized  and  required,  to  do  and  perform  all  the  duties 
imposed  upon  him  by  the  said  will  and  the  laws  of  said  State. 

Given  under  my  hand  and  official  seal  this day 

of ,19.... 

[Seal  of  Office.]  Ordinary  and  Ex-off.  Clerk. 


NUNCUPATIVE  WILL.     §§3925-3928. 


Georgia, County. 

We,  ,  and [name 

of  at  least  three  witnesses  must  be  set  out],  were  present  on 

the day  of ,  19.  .  .  .,  at  the  residence  of 

,  in  said  county,  where  he  had  been  resident 

for  the  space  of  more  than  ten  days,  next  before  the  making  of 

said  will,  during  the  last  illness  of  the  said 

About hours  before  his  death  the  said , 

being  in  perfect  possession  of  his  mental  faculties,  as  appeared 
to  us,  called  upon  the  bystanders,  and  upon  the  undersigned  in 
particular  to  remember  and  take  notice  of  what  he  was  about 
to  say: 

When  he  said  "that  it  had  been  his  intention  for  some  time 
past  to  make  his  will  in  writing,  and  thereby  dispose  of  his 
property,  but  he  had  neglected  to  carry  his  intention  into  execu- 
tion, and  that  now  it  was  not  practicable.  That  he  wished  us 
to  understand  and  bear  witness  that  it  was  his  last  will  and 

desire  that should  have  and  take  possession  of 

all  his  personal  estate,  of  every  kind  and  description,  to  her  own 
proper  use,  benefit  and  behoof.  That  she  was  nearly  destitute 
and  had  several  small  children  to  provide  for;  that  she  had  been 
kind  to  him  during  his  illness ;  and  that  he  desired  and  requested 


WILLS  787 

that  his  friend would  see  that  his  wishes  and 

desires  in  this  regard  be  fully  carried  out." 

That  immediately  after  the  use  in  substance  of  the  above 
language  said died. 

This day  of ,  19 


[NOTE. — The  application  for  probate  must  be  made  within  six  months 
after  the  death,  and  the  substance  of  the  testamentary  disposition  must 
be  reduced  to  writing  within  thirty  days  after  the  speaking  of  the 
same.] 


AFFIDAVIT  OF  WITNESSES. 


Personally  before  me,  the  undersigned,  an  officer  authorized 

to  administer  oaths,  came , and 

,  who,  being  duly  sworn,  say  that  the  writing 

hereto  attached  contains  the  last  request  and  verbal  disposition 

of  the  personal  property  of ,  deceased,  late  of 

said  county,  and  is  just  and  true  in  all  its  particulars. 


Sworn  to  and  subscribed  before  me,  this 
day  of ,   19 


(Official   designation.) 


NOTICE  TO  HEIRS.    §3927. 


Georgia, County. 

To ,  Widow  of ,  Deceased : 

Whereas, has  this  day  filed  in  my  office  a 

writing  purporting  to  be  the  nuncupative  will  of , 

deceased,  late  of  said  county ;  in  which  will  it  appears  that  the 
said was  appointed  executor. 

And  whereas,  the  said has  signified  to  me 

that  he  shall  move  for  letters  testamentary : 

Therefore,  you,  widow  of  the  said  deceased,  are  hereby  notified 


to  be  and  appear  in  said  court  at  the  next term 

thereof  to  contest  the  probate  of  said  will  if  you  desire  to  do  so. 

Witness  mv  hand  and  official  seal  this.  .  .  .day  of , 

19 

(Official  Seal)  Ordinary. 

[NOTE. — The  same  notice  must  be  given  to  all  heirs  at  law  as  re- 
quired on  probate  in  solemn  form  of  other  wills.  §3927.  All  property, 
real  and  personal,  may  be  passed  by  nuncupative  wills  properly  made 
and  approved.  §3928.] 


ORDER  OF  THE  COURT. 


Georgia, County. 

Court  of  Ordinary,  .........  Term,  19 .... 

Whereas,  heretofore,  to  wit,  on  the day  of , 

19 .  .  .  . , filed  in  the  office  of  the  ordinary  of 

said  county  a  writing  purporting  to  be  the  nuncupative  will 
of ,  deceased,  late  of  said  county. 

And  at  the  same  term  of  said  court,  the  court  directed  process 

to  issue  calling  upon ,  widow  of  deceased,  to 

appear  at  this  term,  which  has  been  duly  served. 

And  whereas,  no  objection  has  been  filed  against  the  proceed- 
ings in  this  case,  and  the  witnesses  having  been  examined  in 
open  court: 

It  is  therefore,  ordered,  that  this  will  be  set  up  and  declared 
duly  proven,  and  that  the  same  be  recorded. 

Let  letters  testamentary  be  issued  to  said ,  as 

executor  of  said  will. 

This day  of ,  19 

Ordinary. 


LETTERS  TESTAMENTARY  UNDER  NUNCUPATIVE  WILL. 


Georgia, County. 

By ,  Ordinary  of  said  County. 

To  All  Whom  These  Presents  Shall  Come : 

Know  ye,  that  on  the day  of ,  19, 


WILLS  789 

the  nuncupative  will  of ,  deceased,  was  ex- 
hibited in  open  court;  having  boon  previously  filed  in  my  office; 
and  in  proper  form  of  law  approved  and  ordered  to  be  recorded, 
a  copy  of  which  is  hereto  attached.  And  administration  of  the 

estate  of  said ,  deceased,  was  granted  unto 

,  as  executor  of  said  will.     The  said 

,  having  taken  the  oath  and  performed  all  the 

other  requisites  required  by  law,  is,  by  these  presents,  legally 
authorized  to  administer  the  estate  of  said  deceased,  conferred 
by  said  will,  according  to  the  tenor  and  effect  thereof,  and 
according  to  law.  And  the  said  executor  is  hereby  required  to 
make  a  true  and  perfect  inventory  and  appraisement  of  the 
property  of  said  deceased,  and  to  make  returns  thereof  according 
to  law ;  and  to  render  true  and  correct  account  to  said  court  of 
ordinary  of  his  actings  and  doings  yearly  touching  said  estate, 
until  the  administration  thereof  is  fully  complete. 

Given  under  mv  hand  and  official  seal,  this day 

of ".  .,  19 

(Official  Seal)  Ordinary. 


PRODUCTION  or  WILL,  PETITION  TO  COMPEL.     §3862. 


Georgia, County. 

To  the  Honorable ,  Ordinary  of  said  County : 

1.  The  petition  of shows  that 

died  in  said  county  on  the day  of ,  19.  . .  ., 

possessed  of  real  and  personal  property,  and  leaving  a  will  in 
which  petitioner  is  named  as  executor. 

2.  Said  will  was  left  with  one for  safe 

keeping;  and  soon  after  the  death  of  said  testator,  to  wit,  on 

the day  of ,  19.  . .  .,  petitioner  applied  to 

said for  said  will,  and  requested  of  him  that 

he  file  the  same  with  the  ordinary  of  said  county  for  probate. 

•    3.     Petitioner  shows  that  said has  neglected 

to  comply  with  said  request,   therefore  petitioner  prays  that 

process  may  issue  directed  to  the  said ,  requiring 

him  to  show  cause,  if  any  he  has,  why  he  should  not  file  said 
will  with  said  ordinary,  or  oji  failure  to  do  so  that  he  be  attached 
for  contempt,  and  fined,  or  imprisoned  until  the  same  shall  be 


790  WILLS 

delivered,  according  to  the  statute  in  such  case  made  and  pro- 
vided. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,   19 

,  Ordinary. 


RULE 


Read  and  considered  ;  ordered  that  .................  show 

cause  before  me  on  the  ......  day  of  ............  ,   19  .  .  .  .  , 

at  ........  o'clock,  A.  M.,  at  the  court  house  in  said  county, 

why  he  should  not  file  said  will  as  prayed,  or  on  failure  to  do 
so  be  fined  or  imprisoned  until  the  same  shall  be  delivered  con- 
formably to  law. 

Let  a  copy  of  said  petition  and  this  order  be  served  upon 
...............  instanter. 

This  ......  day  of  ............  ,  19  ____ 

Ordinary. 


SERVICE. 

I  have  this  day  served personally  with  a  copy 

of  the  above  petition  and  rule. 

This day  of ,  19 

,  Sheriff. 


RULE  ABSOLUTE. 


Georgia, County. 

Petition  for  Rule,  etc. 

A  rule  nisi  having  heretofore  issued,  to  wit,  on  the 

day  of ,  19.  .  .  .,  upon  the  petition  of 

duly  filed  and  verified,  requiring to  show  cause 

this  day  why  he  should  not  file  the  will  of witlr 

the  ordinary  of  said  county  for  probate,  and  it  appearing  that 

said was   on   the day   of , 

19.  .  .  .,  duly  served  by  the  sheriff  of  said  county,  with  a  copy 
of  said  petition  and  rule,  and  that  he  has  made  no  answer  thereto 
[or,  failed  to  show  any  sufficient  reason  for  not  producing  said 


WILLS  791 

will],  ordered  that  the  sheriff  of  said  county  seize  the  said 

and  imprison  him  in  the  common  jail  of  said 

county  until  the  said  will  of.  .  . ,  deceased,  be 

delivered  as  aforesaid. 

This day  of ,  19 

Ordinary. 


BOND,  PETITION  TO  COMPEL  EXECUTOR  TO  GIVE.     §3891. 


Georgia, . County. 

To  the  Honorable ,  Ordinary  of  said  County: 

1.     The  petition  of shows  that  he  is  a 

legatee  under  the  will  of ,  deceased,  late  of 

said  county,  and ,  the  duly  qualified  executor 

of  said  will,  is  mismanaging  the  estate  of  his  testator  in  this, 
to  wit:  [here  set  forth  the  acts  of  mismanagement] 

Wherefore,  petitioner '  prays  that  a  rule  nisi  may  issue  re- 
quiring said  executor  to  show  cause,  if  any  he  has,  why  he 
should  riot  be  required  to  give  bond  and  security  for  the  faithful 
performance  of  his  duties  as  executor,  or  in  default  thereof  be 
removed  from  said  trust.  This.  .  .  .day  of ,  19.  ... 


RULE 


(State  the  case.) 

Read  and  considered :  Ordered  that  the  said 

be  and  appear  at  the  next  term  of  this  court,  to  be  held  on  the 

Monday  in ,  19 ....  and  show 

why  he  should  not  be  required  to  give  bond  and  security,  as 
prayed  for  in  said  petition  for  the  performance  of  his  duties 
as  executor  of  said  will.  Let  a  copy  of  said  petition  and  of  this 

order  be  served  personally  upon  the  said at 

least  ten  days  before  the  next  term  of  said  court. 

This day  of ,  19 

Ordinary. 


792  WILLS 

JUDGMENT. 


(State  the  case.) 

The  above  case  coming  on  regularly  to  be  heard  after  due  and 
legal  notice  to  defendant,  upon  hearing  and  evidence,  and  the 

argument  of  counsel,  and  it  appearing  that  said , 

executor,  as  aforesaid,  has  mismanaged  said  estate : 

It  is  therefore  ordered  that  the  said ,  executor, 

as  aforesaid,  give  bond  and  good  security  in  the  sum  of 

dollars,  on  or  before  the day  of , 

19.  .  .  .,  and  that  in  default  thereof  his  letters  testamentary  be 
revoked. 

Ordered  further,  that  the  said pay  the  sum 

of dollars  and cents,  the  costs  of  this 

proceeding.  This day  of ,  19 .... 

Ordinary. 


DISMISSION  FROM  EXECUTOKSHIP.     §3892. 


PETITION. 


Georgia, County. 

To ,  Ordinary  of  said  County : 

The  petition  of shows  the  following  facts: 

1st.     That  at  the term  in  the  year 

of  the  court  of  ordinary  of  said  county,  your  petitioner  qualified 

as  executor  upon  the  estate  of ,  then  late  of 

said  county,  deceased,  and  letters  testamentary  were  issued  to 
your  petitioner. 

2nd.  Your  petitioner  shows  that  he  has  fully  discharged  all 
of  his  duties  as  such  executor,  as  is  shown  by  his  returns  and 
vouchers  of  file  in  your  office,  and  he  asks  that  an  order  of 
citation  be  made,  and  that  citation  issue  and  be  published, 
requiring  all  persons  concerned  to  appear  and  show  cause,  if 
any  they  have  or  can,  against  the  granting  of  letters  of  dismis- 
sion from  said  trust,  and  that  letters  of  dismission  be  granted. 

Petitioner. 


WILLS  793 


OKDER  FOR  CITATION. 


Court  of  Ordinary, 

Terra,  19.  ... 

,  as  executor  of  the  estate  of 

late  of  said  county,  deceased,  having  filed  in  this  court  his 
petition  asking  to  be  dismissed  from  his  trust  as  such  executor, 
and  therein  reciting  that  he  has  fully  discharged  all  of  his  duties 
under  such  trust,  and  upon  examination  it  so  appearing,  it  is 
ordered  that  citation  issue  and  be  published  calling  upon  all 

persons  to  be  and  appear  at  the  next term  of  this 

court,  and  show  cause,  if  any  they  have  or  can,  why  the  prayer 
of  said  petition  should  not  be  granted  and  the  said  executor 
dismissed  from  his  trust  as  prayed,  and  letters  of  dismission 
be  issued. 

This day  of ,  19 

Ordinarv. 


CITATION. 

Court  of  Ordinary. 

Term, ,19.. 

,  as  executor  of  the  estate  of , 

late  o'f  said  county,  deceased,  having  filed  in  this  court  his  peti- 
tion for  letters  of  dismission  as  such  executor  of  said  estate  in 
due  form,  and  alleging  that  he  has  fully  performed  all  of  his 
duties  as  such  executor,  this  is  to  cite  all  persons  whomsoever 

to  be  and  appear  at  the term  of  the  court  of  ordinary 

of  said  county,  to  show  cause,  if  any  they  have  or  can,  why  the 
prayer  of  said  petition  should  not  be  had  and  allowed  and  the 
said  executor  receive  letters  of  dismission  as  prayed. 

Ordinary  and  ex-officio  Clerk  of  Ordinary. 


LETTERS  OF  DISMISSION. 


Georgia, County. 

By  the  Honorable,  the  Ordinary  of  said  County. 
To  All  Whom  These  Presents  Shall  Come  or  be  Made  Known — 

Greeting : 
.  Whereas ,  execut ...  of  the  last  will  and  testa- 


794  WILLS 

ment  of ,  deceased,  has  made  application  for  dis- 
mission from  said  executorship,  and  on  examination  of  the  ap- 
praisement and  inventory  of  the  estate  of ,  de- 
ceased, having  found  all  and  singular  the  property  of  said  estate 

which  came  to  the  hands  of  said well  and  truly 

administered,  as  appears  by  the  vouchers  lodged  in  office:  We 
do,  therefore,  in  pursuance  of  the  powers  vested  in  us,  hereby 

discharge,  exonerate  and  dismiss  the  said from  the 

executorship  'as  aforesaid. 

Given  under  my  official  signature,  this day  of , 

19 

Ordinary County. 


Amendment.  Action  seeking  to  set  up  rights  under  will  is  amendable 
by  alleging  that  plaintiffs  were  suing  as  legatees,  instead  of  heirs 
at  law.  126/148  (54  S.  E.  977). 

Attestation.  Where  there  is  an  attestation  clause  to  instrument  offered 
for  probate  as  a  will,  reciting  all  the  facts  essential  to  its  due  execu- 
tion as  a  will  and  it  is  shown  that  the  alleged  testator  and  those 
whose  names  appear  as  witnesses  actually  affixed  their  signatures 
to  the  paper,  presumption  arises  that  it  was  executed  as  prescribed 
by  law.  140/119  (4)  (78  S.  E.  823).  See  144/801  (4)  (187  S.  E. 
1046).  Attestation  is  not  good,  when  alleged  testator  did  not  sign 
until  after  witnesses  had  signed.  125/386  (54  S.  E.  90).  Attested 
by  only  two  witnesses,  void;  not  aided  by  judgment  of  probate. 
123/144  (51  S.  E.  491). 

Attorney  may  attest  will  for  his  client.    8  App.  91  (68  S.  E.  651). 

Blanks.  Item  of  will  is  not  necessarily  void  because  it  does  not  contain 
name  of  beneficiary  to  whom  it  was  the  intention  of  the  testator  a 
legacy  should  be  given.  145/856,  857  (2)  (89  S.  E.  1084). 

Caveat  to  probate  is  amendable.     142/352   (82  S.  E.  1065). 

Copy  not  attached  to  petition,  no  cause  for  demurrer,  when.  126/768 
(56  S.  E.  81). 

Foreign  will,  executed  in  accordance  with  law  of  other  state,  having 
but  two  witnesses,  not  convey  realty  in  Georgia.  122/398  (50 
S.  E.  131),  887  (50  S.  E1.  997). 

Mark,  illiterate  person  need  not  make,  in  order  to  execute  valid  will; 
authority  for  scrivener  to  sign  is  sufficient.  127/175  (56  S.  E.  289). 

Reformation.  Will  can  not  be  reformed  by  adding  to  it.  122/183  (50 
S.  E,  41). 

Revocation  must  be  as  formal  as  execution,  and  attested  by  three 
witnesses.  122/396  (50  S.  E.  131). 


WITNESSES  795 

WITNESSES.     §§5849-5884. 


SUBPOENA.     §5849. 


Georgia, County. 

To ,  Greeting : 

You  are  hereby  commanded,  that  laying  all  other  business 

aside  you  be  and  appear  at  the Court  in  and  for  the 

county  aforesaid,  on  the Monday  in next,  from 

day  to  day,  and  term  to  term,  until  said  case  is  disposed  of,  then 

and  there  to  be  sworn  as  a  witness  for  the in  the  case  of 

against ,  there  pending. 

Fail  not,  under  the  penalty  of  the  law. 

Witness  the  honorable ,  judge  of  said  Court, 

this day  of ,  19 

"  Clerk.' 


SUBPOENA — COUKT  IN  SESSION. 


Georgia, County. 

To .  .  . ,  Greeting : 

You  are  hereby  commanded,  that  laying  all  other  business 

aside,  you  be  and  appear  at  the Court,  in  and  for  the 

county  aforesaid,  now  in  session,  from  day  to  day,  and  term 
to  term,  until  said  case  is  disposed  of,  then  and  there  to  be 

sworn  as  a  witness  for  the in  the  case  of 

against ,  there  pending. 

.Fail  not  under  penalty  of  the  law. 

Witness  the  honorable ,  judge  of  said  court,  this 

day  of ,19 

"  Clerk.' 


AFFIDAVIT  AS  TO  ATTENDANCE. 


(Icorgia, County. 

Before  the  undersigned  authority  in  and  for  said  county,  per- 
sonally appeared who,  being  first  duly  sworn, 


796  WITNESSES 

savs  on  oath,  that  at  the  time  of  the  service  of  the  attached 

•/  / 

subpoena  npQn  him  he  was  not,  and  is  not  now,  a  resident  of  the 

county  of ,  but  that  he  is  a  resident  of  the  county  of 

,  said  State ;  that  deponent,  at  the term, 

19.  .  .  .,  of  the  Superior  Court  of  the  county  of. , 

attended  said  court  as  a  witness  for  the  State  on  said  attached 

subpoena  the  following  days ,  for  which  service 

he  is  entitled  to  $2.00  per  day,  making  for  said  attendance 

dollars,  and  that  he  on  reaching  his  home  will  have  traveled  in 
going  to  and  from  said  court  by  the  nearest  practicable  route 

miles,  and  that  his  actual  traveling  expenses  in  going 

to  and  returning  from  said  court  will  be dollars. 

Sworn  to  and  subscribed  before  me,  this 


day  of ,19 


Clerk. 

I  hereby  certify  to  the  attendance  and  mileage  as  set  out  in 
the  above  and  foregoing  affidavit,  this day  of ,  19 .  . 

.-. [L.S.] 

Solicitor-General .  ,  .  .  Circuit, 


SUBPCENA    FROM    COUNTY    COMMISSIONERS, 


Georgia, County. 

To ,  Greeting : 

You  are  hereby  commanded  to  be  and  appear  at  the  next  court 
of  county  commissioners  in  and  for  said  county  on  the  first 

Tuesday  in ,  19 .  .  .  . ,  at  ten  o'clock,  a.  m.,  then  and 

there  to  be  sworn  as  a  witness  for  the in  the  case  of 

against for 

Herein  fail  not  under  penalty  of  the  law. 

Witness hand  and  official  signature day  of 

,  19.. 


County  Commissioners. 


WITNESSES  797 

SUBPCKNA  DUCES  TECUM.    §§5844-5846. 


Georgia, County. 

To ,  Greeting : 

You  are  hereby  required  to  be  and  appear  at  the 

to  be  held  in  and  for  said  county,  on  the Monday 

in next,  from  day  to  day,  and  term  to  term,  until 

said  case  is  disposed  of,  and  to  bring  with  you  into  said  court 
a  certain  [here  describe,  with  sufficient  particularity  to  identify 
them,  the  several  books,  papers,  letters  or  documents  desired], 

to  be  used  as  evidence  by  the in  a  certain  case 

pending  in  said  court  between  said vs 

Herein  fail  not  under  penalty  of  the  law. 

Witness  the  honorable ,  judge  of  said  court  this 

day  of ,19..    .. 

Clerk. 


(NOTE:  Service  shall  be  made  upon  residents  of  the  county  ten  days, 
and  upon  non-residents  twenty  days  before  the  trial,  where  the  case  is 
pending  in  the  Superior  Court,  and  five  days  before  in  justice  court 
cases.  It  may  be  made  by  a  sheriff,  constable,  or  private  person,  and 
the  official  return  of  the  sheriff  or  constable,  or  the  affidavit  of  such 
private  person,  shall  be  sufficient  evidence  that  the  same  was  duly 
served.  But  the  judge  may  require  summary  production,  in  certain 
cases.  §5844). 


RULE  AGAINST  DEFAULTING  WITNESS. 


RULE  NISI. 

Georgia, County. 

Superior  Court, term,  19 .  . 

It  appearing  to  the  court  that ha.  .  .been  duly 

subpO3naed  to  appear  and  testify  at  this  term  of  this  court  as 

witness.  .  for  the  State  in  the  case  of  the  State  vs. 

,  charged  with  the  offense  of 

And  it  further  appearing  to  the  court  that  said  witness,  .ha.  . 
failed  and  refused  to  obey  said  subprena.  .and  ha.  .failed  to  ap- 
pear and  answer  when  called  as  witness,  .in  said  case: 

It  is  therefore  ordered  by  the  court  that  the  said 

show  cause  [instanter,  or]  at  the  next  term  of  this  court  why 


798  WITNESSES 

he  should  not  pay  a  fine  of dollars  for  contempt  of  this 

court  in  failing  and  refusing  to  obey  said  subprena.  . 

It  is  further  ordered  that  a  copy  of  this  rule  be  served  on 

. ,  said  witness .  .   [immediately,  or]  at  least  ten  days 

before  the  next  term  of  this  court. 

Judge  Superior  Court Circuit. 

.  .  Solicitor-General. 


RULE  ABSOLUTE. 


Georgia, County. 

Superior  Court, term,  19 .... 

It  appearing  to  the  court  that  the  above  rule  nisi  has  been 

duly  served  upon ,  the  witness.  .  named  therein, 

and  the  said  witness.  .   having  failed  to  render  a  satisfactory 
reason  for absence  "when  called,"  ete. : 

It  is  therefore  ordered  by  the  court  that  the  said  rule  be  made 
absolute  against  said  witness .  .  for dollars. 

And  it  is  further  ordered  that  the  sheriff  of  this  county  arrest 

and  imprison  in  the  common  jail  of  this  county 

said  witness,  .until  said  fine  and  the  cost  of  this  proceeding 
shall  be  fully  paid. 

Judge  Superior  Court Circuit. 

Solicitor-General. 


PART  III. 

CRIMINAL  FORMS. 


PART  III. 
CRIMINAL  FORMS. 


(NOTE:  The  use  of  the  mark  §  designates  sections  of  the  Code  of 
1910.  Where  P.  C.  is  also  used  the  Penal  Code  is  meant.  These  refer- 
ences are  equally  applicable  to  Park's  Annotated  Code  of  Georgia,  1914, 
as  the  section  numbers  therein  are  the  same  as  those  in  the  Code  of 
1910,  except  where  new  matter  was  inserted.) 


CRIMINAL  WARRANT  IN  JUSTICE  COURT. 


AFFIDAVIT.     §905  P.  C. 


Georgia, County. 

Personally  came ,  who  on  oath  says  that,  to  the 

best  of  his  knowledge  and  belief, did,  on  the 

day  of ,  in  the  year ,  in  the  county  aforesaid, 

commit  the  offense  of ,  and  this  deponent  makes  this 

affidavit  that  a  warrant  may  issue  for  his  arrest. 

Affiant. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,19 


J.  P. 


WAEBANT.     §906  P.  C. 


Georgia, County. 

To  any  Sheriff,  Deputy-Sheriff,  Coroner,  Constable,  or  Marshal 
of  said  State,  Greeting: 

makes  oath  before  me  that  on  the day  of 

,  19'.  .  .  . ,  in  the  county  aforesaid, did 

commit  the  offense  of You  are  therefore  com- 
manded to  arrest  the  body  of  the  said and  bring  him 

before  me,  or  some  other  judicial  officer  of  this  State,  to  be  dealt 
\\ith  as  the  law  directs.     You  will  also  levy  on  a  sufficiency  of 


802  CRIMINAL  WARRANT  IN  JUSTICE  COURT 

the  property  of  said to  pay  the  costs  in  the  event 

of  his  final  conviction.     Herein  fail  not. 

J.P. 


CONSTABLE'S  RETURN  ENDORSED  ON  WARRANT. 


Georgia, County. 

Executed  the  within  and  foregoing  warrant  by  arresting.  .  .  ., 

the  defendant and  have  him  present  in  court,  this 

day  of ,  19 

Constable. 


ORDER  OF  COMMITMENT. 


The  State  I    Before  C°Tur< L,of 

J.  P-,    day  of , 

19 

Warrant  for [Offense]. 

After  hearing  the  evidence  in  the  above-named  and  stated 

case,  it  is  ordered  that  the  defendant, ,  be  bound 

over  to  answer  the  offense  of at  the  next  term  of 

the Court  of  said  county,  and  that  he  give  a  bond  with 

good  and  sufficient  security  in  the  sum  of  $ ,  conditioned 

for  his  appearance  at  the  said  term,  from  day  to  day,  until  the 
said  case  is  disposed  of,  to  answer  the  said  offense  charged  in 
said  warrant.  Or  in  default  of  the  giving  of  such  bond,  that 
he  be  committed  to  the  common  jail  of  said  county  to  answer 
said  charge,  and  until  he  is  discharged  therefrom  by  proper  order 

of  the Court. 

Witness  my  hand  and  official  signature,  this day  of 

,19 


COMMITMENT.      (CODE  FORM.)     §939  P.  C. 


Georgia, County. 

having  been  arrested  on  a  warrant  for  the 

offense  of and  brought  before  me,  after  hearing 


CRIMINAL  WARRANT  IN  JUSTICE  COURT 


803 


evidence  it  is  ordered  that  he  he  committed  for  trial  for  the 

offense  of And  the  jailer  of  said  county   (or 

any  other  county,  if  necessary)  is  required  to  receive  and  safely 
keep  him  until  discharged  by  due  process  of  law. 

Witness  mv  hand  and  official  signature,  this day  of 

,;i£vv 

j.p.' 

BFT/L,  OF  COSTS. 

Aggregate. 

Issuing  warrant $1.25 

Arrest    1.25 

Keeping  prisoner 75 

Trial   1.25 

Issuing.  .  .  .subpoenas,  15c.  each 
Summoning  witnesses,  30c.  each 
Examining  witnesses,  30c.  each  . 

Attendance 35 

Taking  preliminary  bond 1.00 

Taking  appearance  bond 1.00 

Commitment 35 

Total 

WITNESSES  FOR  THE  STATE. 

Name ' 

Residence  , 

Name 

Residence  , 

Name 

Residence  , 

Name 

Residence , 

Name 

Residence  

Name 

Residence  

Name 

Residence    . 


804  WARRANT  FOR  GOOD  BEHAVIOR 

RECOGNIZANCE  IN  J.  P.  COURT. 


Georgia, County. 

We, ,  principal,  and ,  security, 

acknowledge  ourselves  bound  unto ,  as  Governor 

of  Georgia.,  and  his  successors  in  office,  in  the  sum  of 

dollars,  for  the  payment  of  which  we  bind  ourselves,  our  heirs, 
executors  and  administrators,  jointly  and  severally,  by  these 
presents,  waiving  all  right  to  homestead  and  exemption  of  per- 
sonalty by  virtue  of  existing  laws. 

Signed  and  sealed,  this day  of ,  19.  ... 

The  foregoing  bond  is  subject  to  this  condition : 

The  above  bound is  charged  upon  the.  oath  of 

with  the  offense  of ,   and  now,  if 

the  said/ shall  appear  at  the  justice's  court,  to  be 

held  in  and  for  the. district,  G.  M.,  county  aforesaid, 

on  the day  of. ,  19.  .  .,  at.  .  .  .o'clock.  .  .m.,  and 

from  day  to  day  and  from  term  to  term,  to  answer  said  charge, 
and  shall  not  depart  thence  without  leave  of  said  court,  then  this 
bond  to  be  void. 

,  Principal   [Seal.] 

,  Security  [Seal.] 

,  Security  [Seal.] 

Attested  and  approved  by: 


J.  P. 


WARRANT  FOR  GOOD  BEHAVIOR.     §1317  P.  C. 


AFFIDAVIT. 


Georgia, County. 

Personally  came  before    the    undersigned,  a    justice  of    the 

peace, ,  the  subscriber,  who,  being  duly  sworn,  on 

oath  says  that of  said  county,  has  threatened  to 

kill  or  do  bodily  harm  to of  said  county,  and  that 

the  said  threats  with  other  acts  of  the  said are 

such  as  to  justify  the  belief  of  affiant  that  the  said 

will  do  bodily  harm  to  the  said ,  and  affiant  makes 


WARRANT  FOR  GOOD  BEHAVIOR  805 

this  affidavit  that  a  warrant  for  the  good  behavior  of  the  said 
be  issued. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,19 


J.  P. 


WARRANT. 

Georgia, County. 

To  any  Lawful  Officer: 

Whereas,  the  above  complaint  has  this  day  been  made  before 
me,  these  are,  therefore,  to  command  you  that  you  forthwith  ar- 
rest the  body  of  the  said and  bring 

before  me,  or  some  other  judicial  officer  of  this  State,  to  be 
dealt  with  according  to  law. 

Given  under  my  hand  and  official  signature,  this day 

of ,19.... 

J.P. 


ENTRY  OF  ARREST. 


Georgia, County. 

I  have  this day  of ,  19 .  .  . ,  executed  the  within 

warrant  by  arresting  the  defendant ,  and  brought 

him  before ,  J.  P.,  for  trial. 

'  c.'  c. 


BOND. 

Georgia, County. 

Know  all  men  by  these  presents,  That  we, , 

principal  and ,  security,  are  held  and  firmly  bound 

unto ,  Governor  of  the  State  of  Georgia,  for  the 

time  being,  and  his  successors  in  office,  in  the  sum  of 

dollars,  for  the  payment  of  which  well  and  truly  to  be  made, 
we  bind  ourselves,  our  heirs,  executors  and  administrators,  firmly 
by  these  presents. 

Signed,  sealed  and  dated  this day  of ,19 


806  PEACE  WARRANT 

The  condition  of  the  above  obligation  is  such,  that  whereas 

the  said has  been  arrested  and  brought  before  me, 

under  and  by  virtue  of  a  warrant  issued  upon  the  affidavit  of 

,   praying  bond  for  good  behavior  against  said 

,  and  the  court  being  satisfied  that  probable  cause 

for  requiring  such  bond  for  good  behavior  does  exist.  Now, 
if  the  said shall  be  and  appear  at  the  next  Supe- 
rior Court,  to  be  held  in  and  for  said  county,  on  the 

Monday  in ,  to  do  and  perform  whatever  may  be  en- 
joined upon by  said  court,  and  in  the  meantime 

shall  do  nothing  unlawful  to  the  said ,  then  this 

obligation  to  be  void,  else  of  full  force  and  effect. 

,  Principal  [L.  S.] 

,  Security  [L.  S.] 

Executed  in  the  presence  of  and  approved 
by  me 


J.  P. 


PEACE  WARRANT.    §1320  P.  C. 


AFFIDAVIT. 

Georgia, County. 

Before  me,  in  person,  came ,  who,  being  duly 

sworn,  deposes  and  says  that is  in  fear  of  death 

or  some  bodily  harm  to  be  done,  or  procured  to  be  done  to 

by 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


J.  P. 


WARRANT 

Georgia, County. 

To  any  Lawful  Officer  of  said  County,  Greeting: 

Whereas, has  made  this  affidavit  before  me  as 

required  by  law,  that is  in  fear  of  bodily  injury, 

to  be  done  or  procured  to  be  done  to by 


PEACE  WARRANT  807 

These  are  therefore  to  command  you  that  you  forthwith  ar- 
rest the  said -.  .  .  .and  bring before  me  to  find 

surety  to  keep  the  peace  towards  this  State  and  all  the  citizens 

thereof,  and  especially  towards  the  said ,  and  also 

to  appear  at  the  Superior  Court  to  abide  any  decree  then  made. 

Given  under  my  hand  and  official  signature,  this 

dav  of ,19 

f> 

'j.'p.' 


ORDER  OF  JUDGE. 


Georgia, ~.  County. 

The  State 
vs. 


Upon  hearing  the  evidence  in  the  above-stated  case,  it  is  ad- 
judged by  the  court  that  the  defendant, .  . ,  give  bond 

and  security  in  the  sum  of dollars  to  keep  the  peace 

toward family  and  property,  or  in  default  thereof 

that  he  be  committed. 

This day  of ,  19 

J.P. 

District,  G.  M. 


BOND. 

Georgia, County. 

We, ,  as  principal,  and ,  as  secur- 
ity, agree  jointly  and  severally  to  pay ,  Governor 

of  Georgia,  and  his  successors    in    office, dollars, 

upon  condition  that  said fails  to  keep  the  peace  as 

against ,  her  family  and  property. 

Witness  our  hands  and  seals  this day  of ,  19.  . 

,  Principal  (L.  S. ) 

,  Security  (L.  S.) 

Executed  in  the  presence  of  and  approved 
by  me 

J.  P. 

District,  G.  M. 


808  SEARCH  WARRANT 

SEARCH  WARRANT.     $1325  P.  C. 


AFFIDAVIT. 


Georgia, County. 

Personally  came < ,  who  being  duly  sworn,  on 

oath  says  that  certain  personal  property,  to  wit, 

has  recently  been  taken  from  his  possession  by  criminal  means, 
and  carried  away,  and  that  he  verily  believes,  and  has  probable 
cause  to  believe,  that  the  said  property  is  now  concealed  in  a 

dwelling  [or,  office;  or  store,  etc.]  occupied  by 

located  at ,  in  the  county  of , 

said  State. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,19 


J.  P. 


WARRANT. 


Georgia, County. 

To  any  Sheriff,  Deputy  Sheriff,  Coroner,  Constable,  or  Marshal 
of  said  State,  Greeting: 

having  made  oath  before  me  that  certain  per- 
sonal property,  to  wit, ,  has  recently  been  taken 

from  his  possession  by  criminal  means,  and  carried  away,  and 
that  he  verily  believes  that  the  said  property  is  now  concealed 

in  a  house  occupied  by ,  located  at , 

in  the  county  of ,  said  State: 

You  are  hereby  commanded  to  enter  said  house  and  make  dili- 
gent search  for  said  property  above  described,  and  if  you  find 
the  same,  or  any  part  thereof,  bring  the  same,  together  with  the 

said ,  before  me,  or  some  other  judicial  officer  of 

this  State,  to  be  dealt  with  as  the  law  directs. 

Witness  my  hand  and  official  signature  this day 

of ,  19.. 


RECOGNIZANCES  809 

RECOGNIZANCES. 


To  APPEAR  AND  GIVE  EVIDENCE  IN  SUPERIOR  COURT. 
§§940,  961  P.  C. 


Georgia, County. 

We, ,  as  principal,  and ,  as  secur- 
ity, both  of  the  county  and  State  aforesaid,  acknowledge  our- 
selves bound  unto  his  Excellency ,  Governor  of 

said  State,  for  the  time  being,  and  his  successors  in  office,  in  the 
sum  of dollars,  subject  to  the  following  conditions: 

Whereas,  at  the term  of  the  superior  court  of 

county,  the  Honorable judge  of  said  court,  re- 
quired   to  give  bond  in  the  sum  of 

dollars,  conditioned  for  his  appearance  to  testify  as  a  witness 

for  the  State  in  the  case  of  State  vs ,  charged 

with. ,  in  said  court  pending.     Now,  therefore,  if 

the  above  bound personally  be  and  appear  at  the 

next  superior  court,  to  be  held  in  and  for  said  county  on  the 

Monday  in next,  and  from  day 

to  day,  and  term  to  term,  thereafter,  then  and  there  to  give  evi- 
dence in  said  case,  so  pending  in  said  court,  and  not  depart 
thence  without  leave  of  the  court,  then  this  obligation  to  be  void ; 
otherwise,  of  force. 

This day  of .  .  .,  19 

,  Principal  (L.  S.) 

,  Security  (L.  S.) 

Approved : 


J.  P. 


APPEARANCE  OF  ACCUSED  IN  SUPERIOR  COURT.     §947  P.  C. 


Georgia, County. 

Know  All  Men  by  these  Presents: 

That  we ,  principal .  .  and ,  securi- 


810  RECOGNIZANCES 

ties,  are  held  and  firmly  bound  nnto  his  Excellency , 

Governor  of  said  State,  and  his  successors  in  office,  in  the  penal 

sum  of dollars,  for  the  true  payment  whereof  we 

hind  ourselves,  our  heirs,  executors  and  administrators,  jointly 
and  severally,  firmly  by  these  presents. 

Signed  with  our  hands,  sealed  with  our  seals,  and  dated  this 
day  of.  ,§ ,19 

The  conditions  of  the  above  obligation  are  such,  That  if  the 

above  bound shall  personally  be  and  appear  at  the 

next  Superior  Court  of county,  to  be  held  on  the 

Monday  in next,  from  day  to  day,  and  from 

term  to  term,  then  and  there  to  answer  to  an  indictment  for  the 

offense  of ,  with  which  he  stands  charged,  and 

shall  not  depart  thence  without  the  leave  of  said  court,  then  the 
above  obligation  to  be  null  and  void;  else  remain  in  full  force 
and  virtue.  And  the  better  to  secure  the  payment  of  this  bond, 
in  the  event  of  forfeiture,  we  each,  for  ourselves  and  families, 
and  as  the  head  of  our  respective  families,  renounce  and  waive 
all  right  and  benefit  of  homestead  and  exemption  under  the  Con- 
stitution and  laws  of  this  State,  as  against  this  obligation. 

,  Principal  (L.  S.) 

,  Security  (L.  S. ) 

,  Security  (L.  S. ) 

,  Security  (L.  S. ) 

Approved  by 


J.  P. 


APPEARANCE  OF  ACCUSED  IN  COURT  OF  INQUIRY.     §947  P.  C. 


Georgia, County. 

Know  all  men  by  these  presents,  that  we, ,  as 

principal,  and ,  as  security,  are  held  and  firmly 

bound  unto ,  Governor  of  said  State,  and  his  suc- 
cessors in  office,  in  the  just  and  full  sum  of dollars, 

subject  to  the  condition  hereinafter  stated,  and  against  the  obli- 
gation of  this  bond  each  of  us,  whether  principal  or  security, 
hereby  for  himself  and  family  waives  and  renounces  any  and 


RECOGNIZANCES  811 

all  right  of  homestead  and  exemption  under  the  Constitution  and 
laws  of  this  State. 

Signed  with  our  hands  and  sealed  with  our  seals,  this 

day  of ,19 

The  condition  of  the  above  obligation  is  as  follows:     The 

above  bound having  been  arrested  by , 

lawful  constable  of  said  county,  on  a  warrant  issued  by  me  for 
,  and  brought  before  me  sitting  as  a  court  of  in- 
quiry at ,  this  day,  and  not  being  ready  for  trial, 

has  asked  the  postponement  of  the  same,  which  has  been  granted 

to  the day  of ,  19 

,  Now  if  the  said  bound should  be  and  appear  be- 
fore me  at on  said  day  and  until  said  case  is  dis- 
posed of  and  not  depart  thence  without  the  'leave  of  the  Court, 
then  and  in  such  case  this  bond  to  be  void,  otherwise  of  full  force 
and  effect. 

,  Principal  (L.  S.) 

,  Security  (L.  S. ) 

Executed  in  the  presence  of  and 
approved  by  me : 


J.  P. 


JUSTIFICATION  OF  SECURITY. 


Georgia, County. 

Before  me  in  person  came ,  who  being  sworn, 

deposes  and  says  that  he  is  security  on  the  within  bond ;  and 
that  he  owns  in  his  own  right  and  name  real  estate  lying  in  said 

county  of  the  value  of hundred  dollars,  the  amount  of 

said  bond,  over  and  above  the  sum  of  sixteen  hundred  dollars, 
which  may  be  claimed  as  exempt  from  levy  and  sale  for  debts 
under  the  Constitution  and  laws  of  this  State,  and  all  debts  and 
other  liabilities. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,19 


Sheriff. 


812  RECOGNIZANCES 

(*•"  -      -    -• I  V 

X. 

FORFEITURE  OF  RECOGNIZANCE. 


RULE  NISI. 


Georgia, County. 

Term  Superior  Court  of  said  County. 


Governor 

vs. 


Forfeiture 

of  Recognizance. 


Securities. 

This  day  came ,  Solicitor-General  of  the 

circuit,  who  prosecutes  for  the  State  of  Georgia,  and  shows  that 

heretofore,  to  wit,  on  the day  of ,  19 .  .  .  . , 

as  principal,  and ,  as  securities  en- 
tered into  an  obligation  before ,  sheriff  of  the 

Superior  Court  for  said  county,  by  which  they  acknowledged 

themselves  to  owe  and  be  justly  indebted  to , 

Governor  of  said  State,  and  his  successors  in  office  in  the  sum 

of dollars,  to  be  void  on  condition  that  the  said 

principal  make  his  personal  appearance  before  the  next  Supe- 
rior Court  to  be  held  for  said  county  of ,  and  from 

day  to  day,  and  term  to  term,  until  said  case  is  disposed  of,  to 

answer  for  the  offense  of with  which  he  stands 

charged Now  on  this  day  the  said , 

being  solemnly  called  to  come  into  court  to  answer  said  charge 
and  the  said  securities,  his  bail,  having  been  warned  to  present 
the  body  of  their  principal,  w'hom  they  engaged  to  be  present 
this  day  to  answer  said  charge,  and  the  said  parties  respectively 
having  wholly  made  default,  it  is"  therefore  considered  by  the 
court  that  the  said  principal  and  the  said  securities  forfeit  their 

recognizance,  and  that  the  said ,  Governor,  recover 

against  said ,  principal,  and ,  securi- 
ties, the  sum  of dollars,  the  amount  of  their  obli- 
gation so  forfeited  as  aforesaid,  unless  at  the  next  term  of  this 


RECOGNIZANCES  813 

court  they  show  sufficient  cause  why  this  order  should  not  be 
made  final  and  scire  facias  is  ordered  to  issue. 

Judge  Superior  Court Circuit. 

Solicitor  General. 


SCIKE  FACIAS. 

Georgia, County. 

To  All  and  Singular  the  Sheriffs  of  this  State  and  thei*  Lawful 
Deputies,  Greeting: 

Whereas.  .  .  ._ ,  principal,  and ,  security, 

did,  on  the day  of ,  19 .  .  .  . ,  before 

make  and  enter  into  their  certain  obligation  of  that  date  com- 
monly called  a ,  signed  with  their  hands  and  sealed 

with  their  seals,  and  attested  by ,  and  which  is  now 

here  in  court,  ready  to  be  shown,  whereby  the  said , 

principal,  and ,  security,  acknowledge  themselves 

firmly  bound  unto ,  Governor  of  the  State  of  Geor- 

gia,  for  the  time  being,  and  his  successors  in  office,  in  the  sum 

of dollars,  for  the  payment  of  which  they  bind 

themselves,  their  heirs,  executors  and  administrators,  firmly  by 

these  presents,  and  which  said was  subject  to,  and 

had  there  unto  a  certain  condition  in  substance  and  to  the  effect 
following,  that  is  to  say:  That  whereas  an  indictment  for  the 

offense  of had  been  found  against  him  the  said 

,  principal,  at  the term,  19 , .  . ,  in 

Superior  Court,  and  said  defendant  was  arrested  and  gave  bond 

conditioned  that  if  the  said should  be  and  appear 

at  our  Superior  Court  of  said  county  on  the day  of , 

19.  .  .  .,  and  from  day  to 'day,  and  term  to  term,  to  answer  for 
the  offense  of ,  and  should  not  depart  thence  with- 
out the  leave  of  the  court,  until  the  said  cause  should  be  finally 
disposed  of,  then  the  said  bond  or  obligation  was  to  be  void,  else 
to  remain  in  full  force  and  effect. 

And  whereas,  at  the term  of  the  Superior  Court  of 

the  county  aforesaid,  to  wit,  on  the. day  of. ,  19.  .  . , 

the  said being  thrice  duly  called  in  open  court,  and  fail- 
ing to  appear,  and  the  said ,  security  of  the  said 

principal,  his  said  appearance  bond  as  aforesaid 

being  duly  called  and  required  to  produce  the  body  of  the  said 


814  RECOGNIZANCES 

in  court,  and  failing  so  to  do,  it  was  thereupon 

ordered,  considered  and  adjudged  by  the  court  that  their  said 

be  forfeited  to  the  State,  and  that  scire  facias 

should  issue  thereon,  in  terms  of  the  law,  all  of  which  by  the 
records  of  said  court — reference  being  thereunto  had — will  more 
fully  and  at  large  appear. 

These  are  therefore  to  command  you,  and  each  of  you,  that 

you  make  known  to  the  said if  to  be  found  in  your 

bailiwick,  that  they,  and  each  of  them,  be  and  appear  in  terms 
of  the  law,  at  the  next  term  of  the  Superior  Court  to  be  held  in 
and  for  the  county  of on  the Mon- 
day in next,  then  and  there  to  show  cause  why  final  judg- 
ment should  not  be  entered  up  against  them,  or  either  or  any 

of  them,  on  their  said so  forfeited  to  the  State,  in  favor 

of  said  State  for  the  amount  thereof,  with  interest  and  cost. 

Witness  the  Honorable ,  judge  of  said  court  this 

day  of ,19 

"Clerk. 


ENTRY  OF  SERVICE. 


I  have  this  day  served  the  defendant  with  a  copy  of  this  writ, 

by... i 

This day  of ,  19.  ... 

"Sheriff/ 


RULE    ABSOLUTE. 


Governor,  etc. 


Superior  Court. 


vs. 

.Term,  19 


It  appearing  to  the  court  that  a  rule  nisi  was  granted  in  this 

case  at  the term,  19.  .  .  .,  of  said  court,  requiring  the 

said  defendants, ,  to  show  cause  at  the 

next  term  of  said  court  why  their  bond  should  not  be  forfeited ; 
and  it  further  appearing  that  a  scire  facias  was  duly  issued  and 


INDICTMENT  815 

served,  and  that  said  defendants  have  shown  no  sufficient  cause 
why  said  bonds  should  not  be  forfeited. 

It  is,  therefore,  on  mo'tion  of  the  solicitor-general,  ordered  by 
the  court  that  said  rule  nisi  be  made  absolute,  and  that  judgment 

be  entered  against  the  said  defendants  for  the  sum  of 

dollars  and cents,  and  cost  of  suit,  in  favor  of , 

Governor  of  said  State,  and  his  successors  in  office,  and  that  said 
plaintiff  recover  from  said  defendants  said  sum  with  cost. 

Judge  Superior  Court Circuit. 

Solicitor-General. 


INDICTMENT. 


GENERAL,  FORM.    §954  P.  C. 


Georgia, County. 

In  the  Superior  Court  of  said  County. 
The  grand  jurors  selected,  chosen  and  sworn  for  the  county  of 

to  wit : 

1 .  .  Foreman. 


2 14. 

3 15, 

4 16, 

5 17, 

G 18, 

7 19, 

8 20, 

9 - 21, 

10 22. 

11 23. 

12 24. 

13..  25. 


In  the  name  and  behalf  of  the  citizens  of  Georgia,  charge  and 

accuse with  the  offense  of ,  for  that 

the  said did  on  the day  of ,  19.  . ., 

in  the  county  aforesaid 


816  INDICTMENT 

contrary  to  the  laws  of  said  State,  the  good  order,  peace  and  dig- 
nity thereof. 

Prosecutor. 
Solicitor-General. 


Term,  19. ... 


Accessory  before  fact,  in  indictment  of,  it  is  not  necessary  to  state 
manner  of  committing  offense.  It  is  sufficient  to  charge  generally 
that  he  feloniously,  wilfully  and  unlawfully  did  procure,  counsel, 
and  command  the  principal  to  commit  it.  14  App.  158  (1)  (79  S.  E. 
71). 

Allegations  of  fact  in  body  of  indictment  must  show  that  accused  did 
all  of  those  acts  which  the  statute  prescribes  shall  be  a  crime  if 
done.  16  App.  312  (1)  (85  S.  E.  284). 

Amendment.  Indictments  and  presentments  are  not  amendable.  17 
App.  143,  144  (86  S.  E.  415). 

Clerical  error.  Where  it  appears  upon  face  of  indictment  that  one  not 
qualified  to  act  as  grand  juror  did  participate  in  finding  and  return- 
in  the  bill,  it  may  be  shown  that  writing  the  name  of  such  grand 
juror  in  indictment  was  a  clerical  error.  141/1  (80  S.  E.  314). 
The  use  of  the  term  "frunk"  instead  of  the  word  "drunk,"  in  in- 
dictment for  sale  of  liquor,  was  a  clerical  error.  14  App.  544,  547 
(81  S.  E.  910). 

Conclusion  of  pleader.  Allegation  that  an  act  which  of  itself  is  in- 
trinsically lawful  was  done  unlawfully,  unless  by  explanatory  state- 
ment it  is  specifically  pointed  out  in  what  manner  the  act  was  done 
unlawfully,  is  a  mere  conclusion  of  the  pleader.  17  App.  205  (86 
S.  E.  452). 

Conjunctive  allegations.  Allegation  of  several  forbidden  things  in  one 
count,  using  "and"  where  statute  has  "or,"  not  double.  1  App.  700 
(58  S.  E.  67).  See  123/17  (51  S.  E.  11). 

Counts.  As  to  misdemeanors,  different  counts  charging  offenses  of 
same  nature  may  be  joined  in  one  indictment.  18  App.  201  (1)  (89 
S.  E.  178). 

Formal  defect.  Indictment  returned  July  8,  1915,  showed  upon  its  face 
that  the  writing  of  the  date  of  the  offense  alleged  therein,  to  wit, 
"2nd  day  of  June,  in  the  year  of  our  Lord,  nineteen  hundred 

and ,  with  force  and  arms,"  had  not  been  completed  by 

the  drawer  of  the  indictment;  and  it  may  be  assumed  that  this 
omission  in  the  date  was  a  mere  lapsus  pennae.  17  App.  750  (2) 
(88  S.  E.  410). 

Names  of  grand  jurors  not  appearing  in  indictment,  it  should  be 
quashed  on  motion,  though  endorsement,  "True  bill,"  was  followed 
by  signature  and  the  word  "Foreman."  14  App.  451  (81  S.  E. 
391).  Offense  is  characterized  in  indictment  not  by  the  name  given 
it  therein,  but  by  criminal  acts  therein  alleged  to  have  been  com- 
mitted. 17  App.  414  (1)  (87  S.  E.  147). 

Particularity.  In  a  broad  sense,  an  indictment  in  which  the  essential 
elements  of  the  crime  charged  are  set  out  with  such  particularity 
as  will  fully  apprise  accused  of  the  exact  nature  of  the  offense  and 
the  manner  in  which  it  was  committed  is  sufficient.  17  App.  337,  338 
(5)  (86  S.  E.  784). 


DEMAND  FOR  TRIAL  817 

Place.  Only  in  an  indictment  under  a  statute  which  makes  the  charac- 
ter of  the  place  an  essential  element  of  the  offense  must  the  place 
at  which  the  crime  was  committed  be  described  with  particularity. 
15  App.  348  (1)  (83  S.  E.  198). 

Special  presentment  is  treated  as  an  indictment.    127/61  (65  S.  E.  131). 

Surplusage.  Allegations  which  are  too  general  and  indefinite  to  set 
forth  a  crime  may  be  treated  as  surplusage  if  there  are  other 
averments  which  sufficiently  allege  the  commission  of  an  offense. 
12  App.  86  (76  S.  E.  779);  18  App.  87,  89  (88  S.  E.  996).  No  aver- 
ment can  be  rejected  as  surplusage  which  is  descriptive  either  of 
the  offense  or  of  the  manner  in  which  it  was  committed.  16  App. 
311  (3)  (85  S.  E.  267). 

Time.  Indictment  naming  neither  day  nor  month  is  defective  and 
should  be  quashed  on  special  demurrer.  15  App.  511  (2)  (83  S.  E'. 
866). 


DEMAND  FOR  TRIAL.     $983  P.  C. 


The  State  ")    In  the  Superior  Court  of 

vs.  •   County Term,  19 . 

Indictment  for.  . 


Now  comes ,  the  defendant  in  the  above  named 

and  stated  case,  at  this  the  term  said  indictment  was  found  (or 
at  the  next  term  after  said  indictment  was  found  as  the  case 
may  be),  and  there  being  jurors  empaneled  and  qualified  to  try 
said  case  at  this  time,  defendant  makes  this  his  demand  for  trial 
and  asks  that  the  same  be  placed  upon  the  minutes  and  that  he 
be  tried  at  this  term  or  at  the  next  term  of  this  Court,  or  in  de- 
fault of  such  trial,  that  he  be  fully  acquitted  and  discharged  of 
said  offense. 

This day  of ,19 

Attorney  for  Defendant. 

Superior  Court. 

Term,   19 

The  above  'and  foregoing  having  been  presented,  and  the  same 
being  true,  said  demand  is  allowed.  Let  it  be  placed  upon  the 
minutes. 

This day  of ,  19 

Judge  of  the  Superior  Court. 


818  COPY  OF  ACCUSATION,  ETC. 

COPY  OF  ACCUSATION  AND  LIST  OF  NAMES  OF 

WITNESSES  UPON  WHOSE  TESTIMONY  CHARGE 

IS  FOUNDED.     §§8  (2),  970  P.  C. 


DEMAND. 

The  State  "}    In  the  Superior  Court  of 

vs.  f   County.-    Term,  19 .... 

Indictment  for 

To ,  Solicitor-General. 

As  the 'defendant  in  the  above-named  and  stated  case,  I  hereby 
make  demand  upon  you,  as  Solicitor-General,  for  a  copy  of  the 
bill  of  indictment  in  said  case,  and  a  list  of  the  names  of  the 
witnesses  upon  whose  testimony  such  charge  is  founded,  and 
who  were  sworn  and  gave  evidence  thereon  before  the  grand 
jury. 


RESPONSE  OF  SOLICITOR-GENERAL. 


The  State  ~\  In  the  Superior  Court  of 

vs.  County Term,  19 .... 

J  Indictment  for 

To ,  Defendant : 

In  response  to  your  demand  for  a  copy  of  the  indictment  and 
list  of  witnesses  upon  whose  testimony  the  charge  in  the  above- 
named  and  stated  case  is  founded,  and  who  were  sworn  and  gave 
evidence  thereon  before  the  grand  jury,  I  furnish  herewith  a 
copy  of  the  indictment  and  also  a  list  of  the  witnesses  who  were 
sworn  and  gave  evidence  thereon  before  the  grand  jury  as  fol- 
lows : 

[Here  set  out  the  names  of  the  witnesses.] 

This day  of ,  19 

Solicitor-General. 


Unless  there  is  something  in  the  charter  to  the  contrary,  it  is  not 
necessary,  it  is  not  necessary  that  a  person  accused  of  violation  of 
a  municipal  ordinance  shall  be  furnished  with  a  written  accusation 
or  statement  of  the  charge  made  against  him.  15  App.  511  (1)  (83 
S.  E.  866).  Demand  for  indictment  not  allowable  in  criminal 
court  of  Atlanta.  126/84  (54  S.  E.  931). 


DEMURRERS  TO  INDICTMENT  819 

DEMURRERS  TO  INDICTMENT.     §975  P.  C. 


GENERAL  DEMURRER. 


The  State  ")    In  the  Superior  Court  of 

vs.  •    County Term,  19 

...     3    Indictment  for.  . 


Now  comes  the  defendant  in  the  above-named  and  stated  case 
and  before  arraignment  and  before  pleading  to  the  indictment 
therein,  and  demurs  thereto, .and  for  grounds  of  demurrer,  says: 

1st.  This  defendant  demurs  to  said  indictment  upon  the 
ground  that  the  allegations  therein  do  not  charge  this  defend- 
ant with  any  offense  under  the  law,  and  under  the  allegations 
therein  the  defendant  is  not  guilty  of  any  offense  under  the  laws 
of  this  State. 

2nd.  This  defendant  demurs  to  said  indictment  upon  the 
ground  that  there  is  no  offense  under  the  laws  of  this  State 
charged  against  defendant  therein,  and  the  allegations  of  said 
indictment  do  not  set  out  and  charge  an  offense  under  the  laws 
of  this  State  against  defendant. 

3rd.  This  defendant  demurs  to  said  indictment  upon  the 
ground  that  the  allegations  therein  are  not  sufficient  to  charge 
this  defendant  with  a  violation  of  any  offense  under  the  laws  of 
this  State,  and  said  indictment  is  wholly  insufficient  in  law. 

This  defendant  prays  that  each  and  all  of  the  foregoing 
grounds  of  demurrer  be  examined  into  by  the  Court  and  that 
said  indictment  be  quashed  upon  each  and  all  of  said  grounds. 

Attorney  for  Defendant. 


SPECIAL  DEMURRER. 


State  ~\    In  the  Superior  Court  of 

County.     Indictment  for 

at  the term,  19 .... 

Now  comes  the  defendant  in  the  above-named  and  stated  case 
before  arraignment  and  before  pleading  therein,  and  files  these 
his  demurrers  to  said  indictment,  and  for  grounds  of  demurrer, 
says: 

1st.  This  defendant  demurs  to  said  indictment  upon  the 
ground  that  there  is  no  allegation  of  any  date  charged  therein, 


820  SPECIAL  PLEAS 

at  which  time  the  defendant  committed  the  offense  alleged  in 
the  charge,  and  this  defendant  prays  the  Court  that  said  indict- 
ment be  quashed  upon  this  ground. 

— or — 

This  defendant  demurs  to  said  indictment  upon  the  ground 
that  the  charge  therein  set  out  and  alleged  is  one  for  larceny 
from  the  house  and  there  is  no  allegation  in  said  indictment  of 
the  value  of  said  property,  or  that  it  is  of  any  value,  and  on 
this  ground  this  defendant  prays  that  said  indictment  be 
quashed. 


This  defendant  demurs  to  said  indictment  upon  the  ground 
that  there  are  no  names  of  the  grand  jurors  set  out  in  said  indict- 
ment, and  it  does  not  appear  who  the  grand  jurors  are,  and  who 
it  is  that  makes  the  charge  against  the  defendant,  and  on  this 
ground  this  defendant  prays  that  said  indictment  be  quashed. 

— or — 

This  defendant  demurs  to  said  indictment  upon  the  ground 
that  the  same  contains  two  counts,  and  the  first  count  does  not 
close  in  proper  form,  in  that  the  allegation  "contrary  to  the  laws 
of  said  State,  the  good  order,  p'eace  and  dignity  thereof"  is 
omitted  from  the  end  of  said  count,  and  the  first  count  not  being 
in  proper  form  and  being  insufficient  in  law,  on  this  ground  this 
defendant  prays  that  the  said  first  count  be  quashed. 


(NOTE:  Any  objection  as  to  the  form  of  the  indictment  must  be 
taken  by  special  demurrer  in  writing  previous  to  pleading  and  arraign- 
ment or  waiver  of  arraignment,  and  these  forms  can  be  varied  to  suit 
any  particular  case.) 


SPECIAL  PLEAS.     §$975-979  P.  C. 


PLEA  OF  MISNOMER.     §979  P.  C. 


The  State  ~\    In  the  Superior  Court  of 

vs.  -    County Term,  19 .... 

; 3    Indictment  for 

Now  comes  defendant  in  the  above-named  and  stated  case  be- 
fore arraignment  and  before  pleading  therein,  and  files  this  his 
special  plea  to  said  indictment,  and  says : 

This  defendant  has  been  indicted  under  the  name  of , 

as  set  out  and  charged  in  said  indictment,  and  he  alleges  that 


SPECIAL  PLEAS  821 

such  name  is  not  his  true  name  and  that  he  has  never  been 
known  and  called  by  said  name,   but  that  his  true  name   is 

,  by  which  he  has  always  been  known  and  called, 

and  he  files  this  his  plea  of  misnomer  to  said  indictment,  sub- 
mits it  to  the  Court  and  prays  that  said  indictment  be  quashed. 

Defendant's  Attorney. 

Georgia, County. 

Personally  came  before  the  undersigned  officer .  .- 

,  the  subscriber,  who,  being  duly  sworn,  on  oath 

says  that  the  facts  and  things  stated  in  the  foregoing  plea,  are 
true. 

Sworn  to  and  subscribed  before  me,  this 

day  of ,  19 

Clerk  Superior  Court. 


Plea   of   misnomer    must   be   filed    before    arraignment.      140/864    (80 
S.  E.  315). 


PLEA  IN  ABATEMENT  ON  GROUND  OF  DISQUALIFICATION  OF 
GRAND  JURORS. 


The  State  ~}    In  the  Superior  Court  of 

vs.  '    County Term,  19 . 

j    Indictment  for.  . 


Now  comes  the  defendant  in  the  above-named  and  stated  case, 
and,  before  arraignment  and  plea  therein,  files  this  his  special 
plea  thereto,  and  says : 

1st.  Defendant  was  arrested  on  a  bench  warrant  that  issued 

from  said  Superior  Court  on  an  indictment  found  at  the 

term,  19.  .  .  .,  thereof,  charging  defendant  with  the  offense  of 
trespass.  Defendant  had  no  knowledge  of  the  pendency  of  said 
matter  before  the  grand  jury,  being  not  guilty  of  the  charges 
therein,  and  knew  nothing  of  them  until  said  arrest.  It  appears 
from  the  names  of  the  grand  jurors  set  out  in  said  indictment 

and  who  served  and  acted  in  finding  said  indictment,  that 

was  one  of  the  grand  jurors  who  acted  in  findkig  said  bill,  and 

it  further  appears  that  the  said the  said  juror 

who  acted  in  finding  said  bill  as  set  out  and  charged  in  such  in- 
dictment, is  the  owner  of  the  land  upon  which  the  trespass  is 


822  SPECIAL  PLEAS 

alleged  to  have  been  committed,  and  this  defendant  submits  to 

the  Court  that  the  said. ,  juror,  was  not  a  qualified 

juror  to  act  in  such  case,  and  this  defendant  never  had  any 
notice  of  the  pendency  of  the  said  matter  before  the  grand  jury 
and  knew  nothing  of  said  matter  before  the  grand  jury  and  knew 
nothing  of  said  prosecution  until  said  indictment  was  found,  and 
he  had  no  opportunity  to  challenge  said , ,  the  al- 
leged owner  of  said  land  as  a  grand  juror,  and  for  this  reason 
this  defendant  files  this  his  plea  to  said  indictment  upon  said 
ground  and  prays  that  the  same  be  quashed. 

Attorney  for  Defendant. 
(Attach  verification.) 


PLEA  OF  AUTRE  Fois  ACQUIT.     §§63G4;  11  P.  C. 


The  State  ]    ^  the  Superior  Court  of . 


vg  County Term,  19.... 

Indictment  for  assault  with  intent  to 


murder. 


Now  comes  the  defendant  in  the  above-named  and  stated  case, 
and,  before  arraignment  and  pleading  therein,  files  this  his 
special  plea  thereto  upon  the  following  ground: 

This  defendant  was  indicted  at  the term,  19.  . .  .,  of 

this  court,  for  the  offense  of  assault  and  battery  upon  one , 

and  at  said  term  was  tried  and  acquitted  of  the  charge  in  said 
indictment.  The  said  indictment  for  assault  and  battery  was 
found  upon  the  same  facts  and  the  same  transaction  upon  which 
the  present  indictment  for  assault  with  intent  to  murder  is 
framed,  which  charges  an  offense  of  assault  with  intent  to  mur- 
der upon ,  the  same  person  named  in  the  indict- 
ment for  assault  and  battery  as  assaulted  and  beaten,  and  this 
defendant  charges  and  alleges  that  having  been  tried  and  ac- 
quitted of  the  offense  of  assault  and  battery  upon , 

and  the  said  alleged  assault  and  battery  having  happened  at  the 
same  time  upon  the  same  person  and  being  the  same  transaction 
upon  which  he  is  indicted  for  the  offense  of  assault  with  intent 
to  murder,  this  cfefendant  pleads  said  former  trial  and  acquittal 
of  the  charge  of  assault  and  battery  in  bar  to  this  indictment 
for  assault  with  intent  to  murder,  and  prays  that  he  be  dis- 
charged. 


SPECIAL  PLEAS  823 

This  defendant  submits  hereto  with  this  special  plea  a  copy 
of  the  said  indictment  for  assault  and  battery,  with  the  verdict 
of  the  jury  thereon  finding  him  not  guilty,  as  a  part  of  this  plea. 

Attorney  for  Defendant. 

Georgia, County. 

Personally  came  before    the    undersigned    attesting    officer, 

,  the  subscriber,  who,  being  duly  sworn,  on  oath 

says  that  the  facts  and  things  set  out  in  the  foregoing  plea,  are 
true. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,19 


Clerk  Superior  Court. 


PLEA  or  AUTRE  Fois  CONVICT. 


(The  above  plea  can  be  varied,  and  if  the  plea  of  autre  fois  convict 
is  proper,  the  plea  can  be  changed  to  meet  such  a  state  of  facts.) 


PLEA  OF  FORMER  JEOPARDY  WHERE  MISTRIAL  DECLARED. 


The  State  ")    Indictment  for  highway   robbery.     In 

vs.  Superior  Court. 

J  ..Term,  19.. 


Conies  now  the  defendant, ,  in  the  above-named 

and  stated  case,  and,  before  plea  and  arraignment  therein,  files 
this  his  special  plea  thereto  and  alleges : 

1st.  That  on  the day  of 19 .  . .  . ,  in  the 

Superior  Court  of County  this  defendant  was 

placed  on  trial  in  this  Court  upon  said  indictment  for  the  offense 
alleged  therein  and  charged,  and  that  after  having  waived  ar- 
raignment therein  and  filing  a  plea  of  not  guilty  therein  and 
after  the  issue  in  said  case  was  made  up  and  submitted  to  the 
jury  and  after  evidence  had  been  heard  thereon,  the  Judge  pre- 
siding in  said  case,  the  Honorable ,  declared  a  mis- 
trial in  said  case  over  the  protest  and  without  the  consent  of  this 
defendant,  and  without  any  legal  and  sufficient  reason  therefor, 
and  this  defendant  having  been  placed  in  jeopardy  upon  said 
charge  in  this  Court,  which  said  Court  at  said  time  had  jurisdic- 


824  SPECIAL  PLEAS 

tion  of  said  offense,  this  defendant  pleads  said  former  jeopardy 
in  bar  and  further  prosecution  on  said  indictment,  and  prays 
the  Court  that  this  his  plea  be  sustained  and  that  he  be  dis- 
charged from  any  other  and  further  prosecution  and  liability  in 
said  case.  This  defendant  attaches  hereto  a  copy  of  the  indict- 
ment in  this  case,  together  with  the  waiver  of  arraignment 
thereon  and  the  plea  of  not  guilty  filed  by  this  defendant  on 
said  former  trial. 

Attorney  for  Defendant. 
Personally  came  before  the  undersigned  attesting  officer,  the 

defendant, who,  being  duly  sworn,  on  oath  says 

that  the  facts  and  things  stated  in  the  foregoing  plea,  are  true. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,  19 


Accusation.  Plea  of  former  jeopardy  which  does  not  set  forth  a  copy 
of  accusation  on  which  it  is  alleged  the  accused  was  previously 
tried,  is  fatally  defective,  and  may  properly  be  stricken  on  de- 
murrer pointing  out  that  defect.  14  App.  577  (1)  (81  S.  E.  797). 

Copy  of  ordinance.  Plea  setting  up  that  accused  had  already  been  con- 
victed by  the  recorder  of  a  certain  municipality  of  the  same 
offense,  but  which  failed  to  set  out  a  copy  of  the  ordinance  under 
which  he  had  been  convicted,  was  properly  stricken  on  demurrer. 
13  App.  74  (78  S.  E.  859). 

Indictment.  Under  the  practice  prevailing  in  Georgia,  it  would  seem 
that  if  the  plea  of  autre  fois  convict  showed  a  valid  verdict  upon 
a  good  indictment  it  would  not  be  demurrable  merely  because  it 
was  not  alleged  that  a  valid  judgment  of  conviction  had  been  enter- 
ed up  on  the  verdict.  14  App.  276  (4)  (80  S.  E.  688). 

Necessity.  Plea  is  necessary  in  order  to  set  up  former  jeopardy;  evi- 
dence as  to  former  jeopardy  was  properly  rejected  in  absence  of 
such  plea.  17  App.  447  (87  S.  E.  602). 

Sufficiency  of  facts.  Plea  is  good,  where  the  facts  required  to  support 
the  second  indictment  would  have  been  sufficient  to  convict  under 
the  first.  13  App.  733,  735  (80  S.  E.  14). 


INSANITY.     §9Y6  P.  C. 


The  State  ~\    In  Superior  Court  of 

vs.  r    County Term,  19 .... 

3    Indictment  for  murder. 

Now  comes  the  defendant  in  the  above-named  and  stated  case, 
and,  before  plea  and  arraignment  therein,  files  this  his  special 
plea  in  said  case,  and  says : 


ARRAIGNMENT  825 

At  this  time  of  trial  this  defendant  alleges  and  says  that  he 
is  now  insane,  and  has  not  sufficient  mental  capacity  and  mind 
to  make  his  defense,  and  to  advise  his  counsel  as  to  his  defense, 
and  the  facts  upon  which  it  is  founded  to  enable  them  to  pre- 
pare and  make  the  same,  that  he  is  not  guilty  of  the  offense 
charged  against  him  in  said  indictment,  and  he  prays  that  the 
facts  set  up  in  this  plea  may  be  inquired  into  by  the  Court  and 
that  such  further  proceedings  may  be  had  as  are  in  conformity 
to  law. 

Attorney  for  Defendant. 


ARRAIGNMENT.     §§968-974  P.  C. 


WAIVER,  AND  PLEA. 


The  defendant, ,   waives   formal  arraignment, 

and  pleads  not  guilty. 

This day  of ,  19 

Defendant's  Attorney. 
Solicitor-General. 


FORM  OF  ARRAIGNMENT. 


The  Solicitor-General  will  say:  "John  Doe,  stand  up.  You 
have  been  indicted  by  the  grand  jury  of  this  county  for  the 
offense  of Listen  to  the  reading  of  the  indict- 
ment." 

The  Solicitor-General  will  then  read  the  indictment,  and  will 
then  say:  "How  say  you,  John  Doe,  are  you  guilty  or  not 
guilty?"  [Here  the  defendant  will  make  his  plea,  which  will 
be  recorded  by  the  Solicitor-General  on  the  indictment  as  fol- 
lows: 

"The  defendant,  being  formally  arraigned,  pleads  not  guilty, 
this day  of ,19 "] 

Then  the  Solicitor-General  will  say:  "These  good  men  and 
true,  whose  names  you  have  heard  called,  and  whose  names  you 


826  JURY  AND  JURORS 

will  hear  called  again,  are  those  who  are  to  pass  between  you 

and  the  State  of  Georgia  upon  this,  your  trial  for 

on  this  indictment.  If  you  would  challenge  them  or  any  one 
of  them,  challenge  them  when  they  come  to  be  sworn  and  be- 
fore they  are  sworn,  and  you  shall  be  heard." 


Formal  arraignment  not  required  where  indictment  was  read  over  to 

accused  by  the  solicitor-general,  and  plea  of  "not  guilty"  entered. 

125/739  (54  S.  E.  667). 
Misdemeanor  case,  what  arraignment  sufficient  in.     125/739   (54  S.  E. 

667). 
Waiver  of  arraignment  on  one  trial  applies  also  to  subsequent  trial 

granted  on  defendant's  motion.    17  App.  252  (87  S.  E.  705). 


JUKY  AND  JUKORS. 


CHALLENGE  TO  ARRAY.     §998  P.  C. 


The  State  In  Superior  Court  of. 


vs.  >•   County Term,  19 .... 

)    Indictment  for 

Now  comes  the  defendant  in  the  above-named  and  stated  case 
before  plea  and  arraignment  therein,  and  when  and  at  the  time 
the  panel  of  jurors  empaneled  to  try  him  are  put  upon  him,  he 
challenges  the  array  of  said  jurors  and  says  that  the  same  should 
not  be  put  upon  him  and  try  his  case,  and  for  grounds  thereof, 
says :  [Here  state  the  grounds  of  challenge,  which  may  be  "for 
any  cause  going  to  show  that  it  was  not  fairly  or  properly  em- 
paneled, or  ought  not  to  be  put  upon  him."] 

This  defendant  insists  that  he  is  entitled  to  a  fair  and  proper 
jury,  and  for  each  and  all  of  the  reasons  hereinbefore  set  out, 
he  insists  that  this  panel  should  be  quashed. 

Attorney  for  Defendant. 


PRELIMINARY  OATH  TO  JURORS.     §1001  P.  C. 


You  shall  true  answers  make  to  such  questions  as  may  be 
asked  you  by  the  Court  or  its  authority  touching  your  compe- 


OATH  OF  WITNESSES — VERDICT  OF  JURY  827 

tency  as  jurors  in  the  case  of  State  of  Georgia  vs , 

charged  with  the  offense  of ,  so  help  you  God. 


QUESTIONS  ON  VOIR  DIRE.     §1001  P.  C. 


1.  Have  you,  from  having  seen  the  crime  committed  or  from 
having  heard  any  of  the  testimony  delivered  on  oath,  formed  and 
expressed  any  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

2.  Have  you  any  prejudice  or  bias  resting  on  your  mind 
either  for  or  against  the  prisoner  at  the  bar? 

3.  Is  your  mind  perfectly  impartial  between  the  State  and 
the  accused? 

[The  following  to  be  asked  in  capital  cases:] 

4.  Are  you  conscientiously  opposed  to  capital  punishment  ? 


OATH  OF  JURY.     §§1003,  1005  P.  C. 


You  shall  well  and  truly  try  the  issue  formed  upon  this  bill 

of  indictment  between  the  State  of  Georgia  and 

charged  with  the  offense  of .  . . ,  and  a  true  ver- 
dict give  according  to  the  evidence,  so  help  you  God. 


OATH  OF  WITNESSES.     §1006  P.  C. 


The  evidence  you  shall  give  the  Court  and  jury  upon  the  trial 

of  this  issue  between  the  State  of  Georgia  and 

charged  with  the  offense  of '.,  shall  be  the  truth, 

the  whole  truth  and  nothing  but  the  truth,  so  help  you  God. 


VERDICT  OF  JURY.     §1059  P.  C. 


We,  the  jury,  find  the  defendant  guilty  [or  not  guilty,  as  the 
case  may  be]. 

This day  of ,  19 

Foreman. 


828  BENCH  WARRANT 

BENCH  WARKANT.     §957  P.  C. 


To  All  and  Singular  the  Sheriffs,  Deputy  Sheriffs,  Constables 
and  Coroners  of  said  State,  Greeting: 

At  the term,  19.  .  .  .,  of  the  Superior  Court  of 

said  County,  the  grand  jurors  found  a  true  bill  against 

for  the  offense  of 

You,  and  each  of  you,  are  therefore  commanded,  in  the  name 

of  the  State,  to  arrest  the  said  defendant, ,  and 

bring  him  before  me  to  be  dealt  with  as  the  law  directs.  Herein 
fail  not. 

Given  under  my  hand  and  official  signature  this 

day  of ,19 

Judge  Superior  Court Circuit. 

Solicitor-General. 


BOND.' 

Georgia, County. 

Know  all  men  by  these  presents,  That  we, 

principal,  and ,  securities,  are  held  and  firmly  bound 

unto  His  Excellency ,  Governor  of  said  State,  and 

his  successors  in  office,  in  the  penal  sum  of dollars, 

for  the  true  payment  whereof  we  bind  ourselves,  our  heirs,  exec- 
utors and  administrators,  jointly  and  severally,  firmly  by  these 
presents. 

Signed  with  our  hands,  sealed  with  our  seals,  and  dated  this 
day  of ,19 

The  condition  of  'the  above  obligation  is  such,  That  if  the 
above  bound  principal  shall  personally  be  and  appear  at  the  next 

Superior  Court  of  said  county  to  be  held  on  the 

Monday  in next,  from  day  to  day,  and  from  term 

to  term,  then  and  there  to  answer  to  an  indictment  for  the  offense 

of (returned  by  the  grand  jury  of  said  county  as 

true),  and  shall  not  depart  thence  without  the  leave  of  said  court, 
then  the  above  obligation  to  be  null  and  void,  else  to  remain  in 
full  force  and  virtue.  And  the  better  to  secure  the  payment  of 
this  bond,  in  the  event  of  forfeiture,  we,  each  fpr  ourselves  and 
families,  and  as  the  head  of  our  respective  families,  renounce 
and  waive  all  right  and  benefit  of  homestead  and  exemption 


ACCUSATION  IN  CITY  OR  COUNTY  COURT  829 

under  the  Constitution  and  laws  of  this  State,  as  against  this 

obligation. 

,  Principal  (Seal. ) 

,  Security  (Seal.) 

,  Security  (Seal. ) 

,  Security  (Seal.) 

Executed  in  presence  of  and 
approved  by 


Sheriff. 


ENTRY  OF  ARREST. 


Georgia, County. 

I  have  this  day  executed  the  within  warrant  by  arresting  the 

defendant and  have  him in  my 

custody. 

This ,  19.... 

Sheriff, County. 


ACCUSATION  IN  CITY  OR  COUNTY  COURT.  §§790  (b> 

790  (eee)  P.C. 


AFFIDAVIT. 

Georgia, County. 

Personally  came ,  who,  on  oath,  says  that  to  the 

best  of .  .knowledge  and  belief did  on  the 

day  of ,  19 .  .  .  . ,  in  the  county 

aforesaid,  commit  the  offense  of ,  for  that  the  said 

at  the  time  aforesaid  and  in  the  county  aforesaid, 

did  then  and  there  unlawfully  and  with  force  and  arms 

and  deponent  makes  this  affidavit  that  an  accusation 

may  be  made  against  the  said.  .  . in  the 

court  of  said  county. 

Sworn  to  and  subscribed  before  me,  this 
the day  of ,  19 


Judge  of Court. 


830  ACCUSATIONS  IN  CITY  OK  COUNTY  COURT 

ACCUSATION. 


Georgia, County. 

In  the Court  of  said  County. 

I, ,  in  the  name  of  the  State  of  Georgia,  charge 

and  accuse ,  of  the  county  and  State  aforesaid, 

basing  said  accusation  upon  the  above  and  foregoing  affidavit, 

with  the  offense  of For  that  the  said 

on  the day  of ,  19 .  .  .  . ,  in  the  county 

aforesaid,  did  then  and  there  unlawfully  and  with  force  and 

arms contrary  to  the  laws  of  said  State,  the  good 

order,  peace  and  dignity  thereof. 

County  Court.     This day  of , 

19.... 

Prosecutor. 


WAIVER  OF  DEFENDANT. 


The  defendant  waives  arraignment,  indictment,  presentment 
of -grand  jury,  the  two  days'  notice,  accusation  and  list  of 
witnesses,  and  pleads guilty. 

Defendant's  Attorney. 


DEMAND  FOR  JURY. 


The  defendant demands  the  jury  allowed  by 

law. 

Defendant's  Attorney. 


VERDICT. 

We,  the  jury,  find  the  defendant guilty.     This 

day  of ,  19 


Foreman. 


Affidavit.  Accusation  in  city  court  must  be  founded  on  affidavit  definite- 
ly charging  an  offense.  16  App.  2G8  (2)  (85  S.  E'.  262).  Accusa- 
tion must  follow  affidavit,  and  proof  must  conform  to  both.  16 


BASTARDS  831 

App.  191,  192  (84  S.  E.  839),  268  (2)  (85  S.  E.  262).  Where  a 
court  is  empowered  by  statute  to  try  misdemeanor  upon  written 
accusation  founded  on  affidavit,  a  valid  affidavit  is  essential.  17 
App.  143  (4)  (86  S.  E.  415).  Wife  can  not  sign  an  accusation, 
charging  another  woman  with  adultery  committed  with  her  hus- 
band. 14  App.  614  (81  S.  E.  912). 

Amendment  to  accusation  relates  back  to  the  time  of  filing  the  original 
accusation.  16  App.  34  (2)  (84  S.  E.  494).  Accusations  are  amend- 
able up  to  the  time  that  issue  is  joined.  17  App.  143,  144  (86  S.  E. 
415). 

Punctuation.  Even  if  failure  here  to  punctuate  properly  a  criminal 
accusation  were  good  ground  for  demurrer,  accused,  by  his  failure 
to  demur,  waived  his  right  to  object.  16  App.  194  (84  S.  E.  833). 


BASTARDS.     §§3026-3030;  682,  683,  1330-1336  P.O. 


PROCEEDINGS  FOR  BASTARDY  WARRANT.    §1331  P.  C. 


AFFIDAVIT. 

Georgia,   County. 

Personally  appeared  before  me, in  and  for 

said  county,   ,  an  unmarried  woman,  who  upon 

oath  says  that  she  is  pregnant  with  a  bastard  child  [or  has  been 
delivered  of  a  bastard  child,  as  the  case  may  be],  which  child  it 
is  probable  will  become  chargeable  to  the  county  aforesaid,  and 
that is  the  father  of  said  child. 

[L.S.] 

Sworn  to  and  subscribed  before  me,  this 

the day  of ,  19 

..J.  P. 


WARRANT. 

Georgia, County. 

To  the  Sheriff  or  any  Constable  of  said  County: 

,  an  unmarried  woman,  having  made  oath 

before  me  that  she  is  pregnant  with  a  bastard  child  [or  has  been 

delivered  of  a  bastard  child,  as  the  case  may  be],  which  child  it 

is  probable  will  become  chargeable  to  said  county,   and  that 

,  .  is  the  father  of  said  child :    You  are  therefore 


832  BASTARDS 

'  _"r 

hereby  commanded  to  arrest   the  body  of  the  said 

and  bring  him  before  me  to  be  dealt  with  as  the  law  directs. 

Given  under  my  hand  and  official  signature  this day 

of ,  19 

.  .J.  P. 


JUDGMENT  REQUIRING  BOND  OF  BASTARD  CHILD'S  FATHER. 

§1332  P.  C. 


Georgia, County. 

having  been  arrested  and  brought  before  me 

upon   a   warrant  charging  him   with   bastardy,   issued   at  the 

instance  of ,  the  mother  of  a  certain  bastard 

child,  which  warrant  charges  said with  being  the 

father  of  said  child,  after  hearing  evidence,  it  is  ordered  that  the 
said give  security  for  the  maintenance  and  educa- 
tion of  said  child  until  it  arrives  at  the  age  of  fourteen  years 
[and  (where  the  child  is  unborn)  "for  the  expense  of  lying-in 
with  such  child,  boarding,  nursing  and  maintenance  while  the 
mother  is  confined."] 

..J.  P. 


BOND  FOR  MAINTENANCE  AND  EDUCATION  OF  BASTARD  CHILD. 

§1332  P.  C. 


Georgia, County. 

Know  all  Men  by  these  Presents: 

That  we,    ,  principal,  and , 

security,  acknowledge  ourselves  jointly  and  severally  bound  to 

,  ordinary  of  said  county,  and  his  successors  in 

office,  in  the  sum  of dollars,  subject  to  the  following 

conditions : 

Whereas, has  made  affidavit  before , 

justice  of  the  peace  for  said  county,  charging  said 

with  being  the  father  of  her  bastard  child  now  of  the  age  of 

[or  "yet  unborn,"  as  the  case  may  be] ,  upon  the 

hearing  whereof  the  said  justice  required  said 

to  give  security  for  the  maintenance  of  said  child,  pursuant  to 
law. 

Now,  should  the  said duly  provide  for  the 

maintenance  and  education  of  said  child  until  it  arrives  at  the 


BASTARDS  833 

age  of  fourteen  years   [and   (where  the  child  is  yet  unborn) 
"also  the  expense  of  lying-in  with  such  child,  boarding,  nursing 
and    maintenance,    while    the    mother    is    confined    by    reason 
thereof],  then  this  bond  to  be  void,  else  of  full  force  and  effect. 
Witness  our  hands  and  seals  this  ......  day  of  ............  , 

19.... 

.....................  ,  Principal  (L.  S.  ) 

.....................  ,  Security   (L.  S.) 

Executed  in  the  presence  of  and  approved 


J.  P. 


JUDGMENT  REQUIRING  BOND  FOR  APPEARANCE.    §1332  P.  C. 

Georgia, County. 

having  failed  and  refused  to  give  the  security 

required  in  the  foregoing  order,  after  having  been  required  so 
to  do,  it  is  ordered  that  he  give  bond  and  security  in  the  sum 

of ....'. dollars,  to  appear  before  the  next  Superior 

Court  of  said  county  to  answer  such  complaint  as  may  be  then 
and  there  alleged  against  him  touching  the  premises,  and  in 
default  of  said  bond,  that  he  be  committed  to  jail  to  then  and 
there  answer  such  complaint  as  may  be  found  touching  the 
premises. 

This day  of ,  19 

..J.  P. 


BOND  FOR  APPEARANCE.     §1332  P.  C. 


Georgia, County. 

We,  ,  principal,  and ,  security, 

acknowledge  ourselves  jointly  and  severally  bound  to  his  Excel- 
lency   ,  Governor  of  Georgia,  and  his  successors  in 

office,  in  the  sum  of dollars,  subject  to  the  following 

conditions : 

Whereas, .has  heretofore  made,  before , 

J.  P.,  an  affidavit  charging with  being  the  father 

of  her  bastard  child,  upon  the  hearing  whereof  the  said 

was  required  to  give  bond,  pursuant  to  law,  which  he  has  failed 
to  do : 

Now,  should  the  said. appear  before  the  next 

Superior  Court  of  said  county,  to  be  held  on  the 


834  EXTRADITION   OF   FUGITIVES   FROM   JUSTICE 

Monday  in  ............  ,  19.  .  .  .,  and  from  day  to  day  and 

term  to  term  thereafter,  to  answer  such  complaint  as  may  be 
then  and  there  alleged  against  him  touching  the  premises,  and 
not  depart  thence  without  leave  of  the  court,  then  this  bond  to 
be  void. 

Witness  our  hands  and  seals  this  ......  day  of  ............  , 

19  ____ 

....................  ,  Principal  (L.  S.) 

....................  ,  Security     (L.  S.) 

Executed  in  the  presence  of,  and  approved 


J.  P. 


EXTRADITION  OF  FUGITIVES  FROM  JUSTICE. 
§§1352-1359  (c)  P.  C. 


Rules  for  practice  and  forms  adopted  by  the  Interstate  Extra- 
dition Conference,  at  its  session  held  in  New  York,  August  24, 

1887. 


PREAMBLE  TO  ADOPTION  OF  RULES  FOE  PRACTICE  AND  FORMS. 


We,  the  undersigned,  delegates  to  an  Inter-State  Extradition  Confer- 
ence, appointed  by  the  Governors  of  the  several  States  and  Territories, 
and  assembled  at  New  York  City,  this  24th  day  of  August,  1887,  hereby 
certify  that  after  deliberation,  the  following  rules  and  forms  have  been 
adopted,  and  we  recommend  the  use  of  the  same  in  all  cases  of  inter- 
state extradition: 

Charles  H.  Phelps,  California;  Tilton  E.  Doolittle,  Connecticut;  Alex- 
ander B.  Hagner,  District  of  Columbia;  T.  J.  Simmons,  W.  W.  Mont- 
gomery, Boykin  Wright,  Georgia;  J.  K.  Edsall,  Illinois;  Almon  A.  Strout, 
Maine;  Edgar  J.  Sherman,  Massachusetts;  Milo  D.  Campbell,  Michi- 
gan; Moses  E.  Clapp,  Minnesota;  William  Lease,  Nebraska;  Daniel 
Barnard,  New  Hampshire;  Goodwin  Brown,  New  York;  Theodore  F. 
Davidson,  North  Carolina;  Charles  E.  Prior,  Ohio;  C.  W.  Stone,  W.  S. 
Kirkpatrick,  Pennsylvania;  Edwin  S.  McGuinness,  Rhode  Island;  W.  K. 
Bachman,  South  Carolina;  John  W.  Stewart,  Vermont;  Henry  W. 
Flourney,  Virginia;  L.  J.  Rusk,  Wisconsin. 


RULES  OF  PRACTICE. 


The  application  for  the  requisition  must  be  made  by  the  district  or 
prosecuting  attorney  for  the  county  or  district  in  which  the  offense  was 
committed,  and  must  be  in  duplicate  original  papers  or  certified  copies 
thereof. 


EXTRADITION  OF  FUGITIVES  FROM  JUSTICE  835 

The  following  must  appear  by  the  certificate  of  the  district  or  the 
prosecuting  attorney: 

(a)  The  full  name  of  the  person  for  whom  extradition  is  asked,  to- 
gether with  the  name  of  the  agent  proposed,  to  be  properly  spelled,  in 
Roman  capitals,  for  example,  JOHN  DOE1, 

(b)  That  in  his  opinion  the  ends  of  public  justice  require  that  the 
alleged  criminal  be  brought  to  this  State  for  trial  at  the  public  expense. 

(c)  That  he  believes  he  has  sufficient  evidence  to  secure  the  con- 
viction of  the  fugitive. 

(d)  That  the  person  named  as  agent  is  a  proper  person,  and  that  he 
has  no  private  interest  in  the  arrest  of  the  fugitive. 

(e)  If  there  has  been  any  former  application  for  the  requisition  of 
the  same  person,  growing  out  of  the  same  transaction,  it  must  be  so 
stated,  w'ith  an  explanation  of  the  reason  for   a  recond  request,   to- 
gether with  the  date  of  such  application,  as  near  as  may  be. 

(f)  If  the  fugitive  is  known  to  be  under  either  civil  or  criminal 
arrest  in  the  State  or  Territory  to  which  he  is  alleged  to  have  fled,  the 
fact  of  such  arrest  and  the  nature  of  the  proceedings  on  which  it  is 
based  must  be  stated. 

(g)  That  the  application  is  not  made  for  the  purpose  of  enforcing 
the  collection  of  a  debt,  or  for  any  private  purpose  whatever,  and  that 
if  the  requisition  applied  for  be  granted,  the  criminal  proceedings  shall 
not  be  used  for  any  of  said  objects. 

(h)  The  nature  of  the  crime  charged,  with  a  reference,  when  prac- 
ticable, to  the  particular  statute  denning  and  punishing  the  same. 

(i)  If  the  offense  charged  is  not  of  recent  occurrence,  a  satisfactory 
reason  must  be  given  for  the  delay  in  making  the  application. 

1.  In  all  cases  of  fraud,  false  pretenses,  embezzlement  or  forgery, 
when  made  a  crime  by  the  common  law,  or  any  penal  code  or  statute, 
the  affidavit  of  the  principal  complaining  witness  or  informant  that  the 
application  is  made  in  good  faith,  for  the  sole  purpose  of  punishing  the 
accused,  and  that  he  does  not  desire  or  expect  to  use  the  prosecution  for 
the  purpose  of  collecting  a  debt,  or  for  any  private  purpose,  and  will 
not  directly  or  indirectly  use  the  same  for  any  of  said  purposes,  shall 
be  required,  or  a  sufficient  reason  be  given  for  the  absence  of  such 
affidavit. 

2.  Proof  by  affidavit  of  facts  and  circumstances  satisfying  the  Execu- 
tive that  the  alleged  criminal  has  fled  from  the  justice  of  the  State,  and 
is  in  the  State  on  whose  Executive  the  demand  is  requested  to  be  made, 
must  be  given.     The  fact  that  the  alleged  criminal  was  in  the  State 
where  the  alleged  crime  was  committed  at  the  time  of  the  commission 
thereof,  and  was  found  in  the  State  upon  which  the  requisition  was 
made,  shall  be  sufficient  evidence,  in  the  absence  of  other  proof,  that  he 
is  a  fugitive  from  justice. 

3.  If  an  indictment  has  been  found,  certified  copies,  in  duplicate, 
must  accompany  the  application. 

4.  If  an  indictment  has  not  been  found  by  a  grand  jury,  the  facts  and 
circumstances  showing  the  commission  of  the  crime  charged,  and  that 
the  accused  perpetrated  the  same,  must  be  shown  by  affidavits  taken  be- 
fore a  magistrate  (a  notary  public  is  not  a  magistrate  within  the  mean- 
ing of  the  statutes),  and  that  a  warrant  has  been  issued  and  duplicated 
certified  copies  of  the  same,  together  with  the  returns  thereto,  if  any, 
must  be  furnished  upon  an  application. 


836         EXTRADITION  OF  FUGITIVES  FROM  JUSTICE 

5.  The  official  character  of  the  officer  taking  the  affidavits  or  deposi- 
tions and  of  the  officer  who  issued  the  warrant  must  be  duly  certified. 

6.  Upon  the  renewal  of  an  application,  for  example:     On  the  ground 
that  the  fugitive  has  fled  to  another  State,  not  having  been  found  in  the 
State  on  which  the  first  was  granted,  new  or  certified  copies  of  papers 
in  conformity  with  the  above  rules  must  be  furnished. 

7.  In  the  case  of  any  person  who  has  been  convicted  of  any  crime, 
and  escapes  after  conviction,  or  while  serving  his  sentence,  the  applica- 
tion may  be  made  by  the  jailer,  sheriff,  or  other  officer  having  him  in 
custody,  and,  shall  be  accompanied  by  certified  copies  of  the  indictment 
or  information,  record  of  conviction  and  sentence,  upon  which  the  per- 
son is  held,  .with  the  affidavit  of  such  persons  having  him  in  custody, 
showing  such  escape,  with  the  circumstances  attending  the  same. 

8.  No  requisition  shall  be  made  for  the  extradition  of  any  fugitive 
except  in  compliance  with  these  rules. 


APPLICATION  OF-  SOLICITOR-GENERAL  FOR  REQUISITION. 
§1357  P.  C. 


State  of  Georgia, County. 

To  His  Excellency, ,  Governor  of  Georgia : 

The  petition  of ,  Solicitor-General  of  the 

judicial  circuit,  who  is  the  prosecuting  officer  for 

said  circuit,  respectfully  shows: 

1.  That [set  out  his  name  in  full,  and  not  by 

initials]  alias is  charged  in  an  indictment  found 

true  by  the  grand  jury  of Superior  Court,  and 

returned  into  said  Court  on  the day  of , 

19. . .  .,  and  now  of  file  in  said  court,  with  the  offense  of 

as  will  fully  appear  by  reference  to  the  duly 

certified  copy  of  said  indictment,   and  of  the  several  entries 
thereon,  hereto  attached  and  made  a  part  of  this  petition,  and 

the  said is  a  fugitive  from  justice,  having  fled  to 

the  State  of 

2.  Petitioner  shows  that  in  his  opinion  the  ends  of  public 

justice  require  th'at  said ,  fugitive  from  justice  as 

aforesaid,   be  brought  to  this   State  for   trial,   at  the   public 
expense. 

3.  Petitioner  believes  that  he  has  sufficient  evidence  to  secure 

the-  conviction  of  the  said of  the  crime  mentioned 

in  said  indictment. 

4.  Petitioner  names ,  sheriff  of 

county,  Georgia,  as  agent  for  the  State,  and  says  that  he  is  a 
proper   person   to   receive    said    fugitive,    and   return   him   to 


EXTRADITION  OF  FUGITIVES  FROM  JUSTICE  837 

Georgia,  and  that  the  said has  no  private  interest 

in  the  arrest  of  the  said ,  fugitive  as  aforesaid. 

5.  Petitioner  shows  that  a  former  application  for  a  requisi- 
tion for  the  same  person,  growing  out  of  the  same  transaction, 

was  made  on  or  about  the day  of ,  19. . .  ., 

upon  the  Governor  of ,  and  that  no  requisition  was 

issued  thereupon  by  the  Governor  of because  the 

said ,  fugitive  as  aforesaid,  could  not  be  found  in 

that  State.     [If  there  was  no  former  application,  this  clause 
may  be  omitted.] 

6.  Petitioner  shows  that  the  said ,  fugitive  as 

aforesaid,  is  now  under  criminal  arrest  in  the  State  of , 

to  which  he  is  alleged  to  have  fled,  as  hereinbefore  stated,  being 
under  arrest  there,  as  petitioner  is  informed  and  believes,  for 
the  offense  of committed  in  the  State  last  afore- 
said.    [This  paragraph  may  be  omitted  is  not  according  to  the 
facts.] 

7.  Petitioner  shows  that  this  application  is  not  made  for  the 
purpose  of  enforcing  the  collection  of  a  debt,  or  for  any  private 
purpose  whatever,  but  that  if  the  requisition  now  applied  for  be 
granted,  the  criminal  proceedings  shall  not  be  used  for  any  such 
object. 

8.  The  nature  of  the  crime  charged  sufficiently  appears  by 
reference  to  the  certified  copy  of  the  indictment  hereto  attached, 
and  of  the  particular  statute  of  Georgia  defining  and  punishing 
the  said  crime  is  hereto  attached  marked  "Exhibit  B." 

9.  Petitioner   shows   that  the   offense   charged   in   the   said 
indictment  is  therein  alleged  to  have  been  committed  on  the 

day  of ,  19.  .  .  .,  and  that 

months  have  intervened  between  that  date  and  the  date  of  the 
present  application,  and  that  the  reason  for  the  delay  in  making 
this  application  is  that  the  authorities  of  the  State  of  Georgia 
did  not  know,  and  were  not  able  to  ascertain,  the  State  to  which 

the  said fugitive  as  aforesaid,  fled,  until  the 

day  of ,  19 ....      [If  no  considerable  delay 

appears  this  paragraph  may  be  omitted.] 

Wherefore,  petitioner  prays  the  granting  of  a  requisition  in 
terms  of  the  law,  according  to  the  law  in  such  case  made  and 
provided. 

This day  of ,19 

Solicitor-General Circuit. 


838         EXTRADITION  OF  FUGITIVES  FROM  JUSTICE 
AFFIDAVIT  OF  PROSECUTOR.    §1357  P.  C. 


Georgia, County. 

rpi      Q,                      ~1            Indictment  in  Superior  Court 
Ine  btate                               .  n  ,       , 

I  oi County,  for  the 

offense  of 

'   J  Term,  19 

Personally  came    before  the'  undersigned    attesting    officer, 

who  by  the  law  has  authority  to  administer  oaths, , 

who,  being  duly  sworn,  on  oath  says  that  he  is  a  resident  of  said 
county,  and  is  the  prosecutor  upon  the  indictment  in  the  above 
named  and  stated  case;  affiant  says  that  application  is  about 
to  be  made  to  the  Governor  of  Georgia,  for  a  requisition  upon 

the  Governor  of ,  for  the  purpose  of  returning 

said  defendant  to  this  State  for  the  purpose  of  trial  on  said 
indictment;  affiant  says  that  the  said  requisition  is  wanted  for 
the  sole  purpose  of  punishing  the  accused,  and  not  in  any  way 
to  collect  a  debt  or  money,  or  to  enforce  the  payment  thereof. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,19 


J.  P. 


(NOTE:    This  affidavit  must  be  made  in  duplicate.) 


CERTIFICATE  OF  CLERK  TO  MAGISTRATE'S  AUTHORITY. 


State  of  Georgia, County. 

I, ,  Clerk  of  the  Superior  Court  of  said  county, 

which  court  is  a  court  of  record,  do  hereby  certify  that 

is  a  duly  commissioned  justice  of  the  peace  in  and  for 

said  State  and  county,  and  that  he  was  commissioned  on  the 

day  of ,  19 .  .  .  . ,  and  that  his  commission 

as  such  justice  of  the  peace  expires  with  the day  of 

,  19.  .  .  .,  and  that  he  resides  in  said  county  of 


I  further  certify  that  I  am  acquainted  with  the  signature  of 

the  said ,  as  such  justice  of  the  peace,  to  the 

instrument  hereto  attached ;  that  the  same  is  genuine,  and  that, 
under  the  laws  of  Georgia,  he  is  authorized  to  attest  instruments 


EXTRADITION  OF  FUGITIVES  FROM  JUSTICE  839 

for  record,  take  acknowledgments  and  administer  oaths  and  to 
issue  warrants  for  arrests  of  criminals. 

In  witness  of  all  which  I  hereunto  subscribe  my  name  'and 

affix  the  seal  of  this  court,  this  the day  of , 

19.... 

Clerk  of  the  Superior  Court  of Co.,  Ga. 


CERTIFICATE  OF,  THE  CLERK  TO  COPY  OF  THE  BILL  OF 
INDICTMENT. 


State  of  Georgia, County. 

I, ,  clerk  of  the  Superior  Court  of  said  county, 

which  court  is  a  court  of  record,  do  hereby  certify  that  the  grand 

jury  of  said  court,  at  the term  thereof,  did  find  as 

true,  and  return  into  court,  a  bill  of  indictment  against 

,  charging  him  with  the  offense  of , 

and  that  the  copy  hereto  attached  is  a  true  copy  of  said  indict- 
ment, and  of  the  several  entries  thereon,  as  the  same  appears  of 
file  in  this  office. 

In  witness  whereof  I  hereunto  subscribe  my  name  and  affix 
the  seal  of  this  court. 

This day  of ,  19 

[Official  Seal]       Clerk  Superior  Court County. 


[NOTE. — The  Governor  of  Massachusetts,  in  refusing  a  requisition 
upon  the  application  of  the  Governor  of  Georgia,  under  date  of  June  14, 
1907,  held  the  papers  not  to  be  complete  and  desired  that  "a  sworn 
statement  shall  be  made  that  the  alleged  criminal  was  in  the  State 
where  the  alleged  crime  was  committed  at  the  time  of  the  commission 
thereof,  and  is  found  in  the  State  upon  which  the  requisition  was  made, 
and  that  he  is  a  fugitive  from  justice."  It  is  suggested,  that  the  follow- 
ing affidavit  be  attached  as  an  exhibit  to  the  Solicitor-General's  petition 
filed  with  the  Governor:] 


State  of  Georgia, County. 

Personally  before  the  undersigned,  an  officer  authorized  to 

administer  oaths,  came who,  on  oath,  says  that  he  is 

familiar  with  the  contents  of  the  bill  of  indictment  against 

found  true  by  the  grand  jury  of 

Superior  Court  at  the term,  19.  .  .  .,  thereof,  and 

now  of  file  in  the  clerk's  office  of  said  county,  and  that  the 
offense  therein  charged  was  committed  in  the  State  and  county 


840  HABEAS  CORPUS 

aforesaid,  and  that  said ,  the  accused  herein 

mentioned,  is  now  to  be  found  in  the  State  of upon 

which  a  requisition  is  made,  and  that  he  is  a  fugitive  from 
justice  from  the  State  of  Georgia.* 

Sworn  to  and  subscribed  before  me,  this 
day  of ,19 


*This  affidavit  may  be  covered  by  the  certificate  of  the  clerk  of  the 
Superior  Court,  as  to  the  official  character  of  the  magistrate  attesting 
it.  A  commercial  notary  public  will  not  do. 


HABEAS  CORPUS.     §§1290-1316  P.  C. 


PETITION.    §1292  P.  C. 


Georgia, County. 

To  the  Honorable ,  Judge  of  the  Superior  Court 

of  said  County: 
The  petition  of shows : 

1.  Your  petitioner  is  illegally  restrained  of  his  liberty,  by 
being  confined  in  the  common  jail  of  said  county. 

2.  The  person  restraining  the  liberty  of  the  said 

is the  sheriff  and  jailer  of  said  county,  and  the 

place  of  detention  is  at  the  common  jail  of  said  county.     The 

cause  or  pretence  of  said  restraint  by  the  said is 

under  and  by  virtue  of  a  bench  warrant,  from  which  it  appears 
that  the  indictment  was  found  against  your  petitioner  by  the 
grand  jury  of  the  Superior  Court  of  the  said  county,  at  the  last 

term  thereof,  for  the  offense  of ,  in  which  case 

was  prosecutor. 

A  copy  of  said  warrant  is  annexed  to  this  petition. 

3.  Petitioner  avers  that  he  is  detained  by  said 

sheriff  and  jailer  as  aforesaid,  and  now  offers  to  give  bail  in  the 

sum  of dollars,  which  is  a  reasonable  and  sufficient 

sum  in  a  case  of  the  character  pending  against  the  petitioner. 

(a)   Said sheriff  and  jailer  as  aforesaid  refuses 

to  receive  said  bond  and  security,  though  good  and  sufficient  in 
the  law,  and  still  holds  your  petitioner  in  confinement  requiring 

him  to  give  bail  in  the  sum  of dollars,  which  your 

petitioner  avers  is  excessive. 


HABEAS  CORPUS  841 

Wherefore,  petitioner  avers  that  his  further  restraint  is  illegal 
and  prays  your  Honor  to  issue  State's  writ  of  habeas  corpus 

directed  to  said sheriff  and  jailer  as  aforesaid, 

requiring  him  to  bring  your  petitioner  before  your  Honor,  at 
the  time  and  place  to  be  specified  in  the  writ,  for  the  purpose 
of  examining  into  the  case  of  the  detention. 

Petitioner. 


AFFIDAVIT  TO  PETITION. 


Georgia, County. 

Personally  comes ,  who,  being  duly  sworn, 

deposes  and  says  that  the  allegations  contained  in  the  foregoing 
petition  for  writ  of  habeas  corpus  are  true. 

Petitioner. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,19 


J.  P. 


WRIT.     §1295  P.  C. 


Georgia, County. 

To   

You  are  hereby  commanded  to  produce  the  body  of 

alleged  to  be  illegally  detained  by  you,  together  with  the  cause 

of  the  detention,  before  me,  on  the day  of 

at then  and  there  to  be  disposed  of  as  the  law 

directs. 

.Let  a  copy  of  this  order  be  served  upon  the  solicitor-general, 

if  he  is  in  the  county,  and  if  not,  upon ,  the 

prosecutor,  three  days  before  the  hearing. 

Given  under  my  hand  and  official  signature,  this  the 

day  of ,  19 

Judge  Superior  Court. 


842  HABEAS  CORPUS 

RETURN  TO  THE  WRIT  BY  SHERIFF  AND  JAILER.     §1299  P.  C. 


Georgia, County. 

In  obedience  to  the  within  writ  and  acting  under  the 
authority  of  the  same,  I  have  taken  the  body  of  the  within 

named from  the  common  jail  in  said  county,  and 

now  have  him  before  the  honorable ,  judge  of  the 

Superior  Court  of  the  said  county. 

And  for  cause  of  the  detention  of  the  said and 

his  imprisonment  in  the  said  jail,  I  assign  and  state  that  on  the 

day  of ,  19.  .  .  .,  the  said  petitioner  was 

brought  and  committed  to  the  said  jail  by ,  a 

of  the court  of  said  county,  by  virtue 

of  a  bench  warrant  issued  out  of  the  said  court,  which  is  here 
produced,  and  the  same  annexed  to  this  answer. 

By  the  terms  of  said  warrant  the  respondent  herein  was 

required  before  releasing  the  said to  exact  of  him 

good  and  sufficient  security  in  the  sum  of  $1,000. 

Respondent  shows  that  the  petitioner  herein  detained  tendered 

bond  and  security  of  only  the  sum  of dollars,  refusing 

to  tender  more,  on  the  ground  that  the  amount  of  bail  exacted 
was  unreasonable  and  excessive.  The  respondent  herein  refused 
to  accept  such  tender. 

Respondent  therefore  assigns  the  premises  aforesaid  as  the 

cause  of  the  detention  and  imprisonment  of  said 

in  said  jail. 

All  of  which  is  respectfully  submitted. 

Sheriff  and  Jailer  of County,  Ga. 


AFFIDAVIT  TO  ANSWER. 


Georgia, County. 

And  now  comes ,  the  sheriff  and  jailer  mentioned 

in  the  foregoing  petition,  and  on  oath  says  that  the  statements 
contained  in  this,  his  return  to  the  petition  aforesaid,  are  true. 

Sheriff  and  Jailer  of County,  Ga. 

Sworn  to  and  subscribed  before  me,  this 
day  of ,19 


J.  P. 


GAME  LAWS  843 

Corporation.  Writ  should  not  be  directed  to 'a  corporation;  yet,  where 
it  is,  and  the  person  is  produced,  cause  of  the  detention  will  be  in- 
vestigated. 117/306  (43  S.  E.  780). 

Demurrer.  After  the  writ  is  issued  and  the  respondent  has  appeared 
in  answer  to  it,  the  sufficiency  of  the  petition  can  not  be  tested  by  a 
demurrer.  16  App.  208,  210  (84  S.  E.  980). 

Information  and  belief.  Fact  that  averments  of  petition  were  made  on 
information  and  belief  is  not  ground  for  quashing  writ  or  refusing 
to  issue  it.  117/306  (43  S.  B.  780). 

Return  to  writ  may  be  amended  at  any  time  before  final  disposition  of 
the  case;  amendment  stating  mere  formal  averments  of  legal  con- 
clusions on  facts  stated  in  return  need  not  be  under  oath.  120/670 
(48  S.  E.  170). 

Technicalities.  Writ  of  habeas  corpus  is  a  "writ  of  right,"  and  its 
beneficial  effects  ought  not  to  be  dissipated  by  subtle  objections 
and  technical  niceties,  and  the  technical  rules  of  the  pleading  are 
not  applicable  to  such  a  proceeding.  16  App.  208,  210  (84  S.  E'. 
980). 

Verification  of  return  by  person  other  than  one  .making  it  did  not  re- 
quire the  discharge  of  the  applicant  held  under  sentence  of  court. 
136/72,  80  (70  S.  E.  781). 


GAME  LAWS. 


(Acts  1911,  p.  137,  and  Acts  1912,  p.  113,  as  amended  by 
Acts  1916,  p.  114.  See  Park's  Ann.  Code  Supp.,  1917, 
§§2158(a)-2158(j);  594(a)-594(p)  P.  C.) 


The  following  laws  relating  to  the  protection  of  game,  birds  and  fish 
are  taken  from  bulletin  number  6,  issued  by  the  Department  of  Game 
and  Fish  in  December,  1916. 


SECTION  1.  Be  it  enacted  by  the  General  Assembly  of 
Georgia,  That  the  department  of  game  and  fish  be  established, 
to  be  in  charge  of  the  game  and  fish  commissioner,  who  shall 
be  appointed  by  the  governor,  and  the  term  of  whose  office  shall 
be  for  a  period  of  two  years,  beginning  September  1,  1911,  or 
until  his  successor  is  appointed  and  qualified.  Any  vacancy  in 
the  office  by  oath  or  otherwise,  shall  be  filled  by  appointment 
of  the  governor. 

SEC.  2.  Said  commissioner  shall  receive  a  salary  of  not 
exceeding  $2,000.00  per  annum,  payable  alone  out  of  the  fund 
hereinafter  mentioned,  and  provided  by  virtue  of  this  act,  and 
he  shall  give  his  entire  time  to  the  service  of  the  State  as  such 
game  and  fish  commissioner. 

SEC.  3.  Said  commissioner  shall  give  bond  in  the  sum  of 
$4,000  payable  to  the  governor  of  the  state,  with  two  or  more 
solvent  securities,  conditioned  for  the  faithful  performance  of 


844  GAME  LAWS 

the  duties  of  his  office  and  a  proper  accounting  of  all  moneys 
that  may  come  into  his  hands  as  commissioner.  He  shall  keep 
a  public  record  correctly  disclosing  all  moneys  received  and 
expended,  the  number  of  hunters'  licenses,  the  number  of 
wardens  employed,  with  their  names,  'and  counties  in  which 
they  serve.  Also  the  name  of  each  person  prosecuted  for  viola- 
tion of  this  act,  the  amount  of  fines  imposed  and  collected  in 
each  case,  and  all  such  information  as  may  be  necessary  to  the 
affairs  of  the  department.  The  books  and  accounts  of  said  com- 
missioner shall  be 'audited  in  the  same  way  as  other  books  and 
accounts  of  the  other  departments  of  the  state  are  audited.  He 
shall  have  a  seal  of  office. 

SEC.  4.  It  shall  be  the  duty  of  said  commissioner  to  see  that 
the  laws  now  or  hereafter  enacted  for  the  protection,  propaga- 
tion and  preservation  of  game  animals,  game  birds  and  fish  in 
this  State  are  observed,  and  that  violations  of  said  laws  are 
promptly  and  speedily  prosecuted.  It  shall  be  his  duty  to  seize 
or  cause  to  be  seized  game  birds,  or  other  animals  and  fish  caught 
or  killed  at  a  time  or  in  a  manner,  or  which  have  been  shipped, 
contrary  to  the  provisions  of  this  act.  Such  game  or  fish  so 
seized  shall  be  donated  to  some  charitable  institution  in  this 
State,  except  live  game  birds,  animals  or  fish,  which  shall  be 
liberated.  He  shall,  with  wardens  and  deputy  wardens  and 
ex-officio  wardens,  be  authorized  to  serve  all  criminal  processes 
for  violations  of  this  act  which  could  be  served  by  the  sheriff 
and  constables  of  this  State. 

SEC.  5.  He  shall  appoint  game  and  fish  wardens  and  deputy 
wardens  in  each  county  of  this  State,  such  appointees  to  hold 
their  office  for  the  term  of  two  years,  unless  sooner  removed 
for  cause  by  the  commissioner.  Such  wardens  and  deputy 
wardens  shall  enforce  all  the  provisions  of  this  act,  and  all 
other  laws  in  reference  to  game  and  fish  in  their  respective 
counties.  Such  wardens  and  deputy  wardens  shall  receive  three 
dollars  per  day  while  acting  under  the  special  directions  of 
the  commissioner  with  reference  to  the  discharge  of  their  duties, 
which  sum  shall  be  paid  out  of  the  game  fund  provided  for  by 
this  act.  Each  county  warden  shall  receive  one-fourth  of  all 
fines  and  forfeitures  and  penalties  collected  in  the  county  in 
which  he  holds  office  imposed  for  violation  of  any  of  the  game 
and  fish  laws  of  this  State  where  he  does  not  furnish  the 
evidence  necessary  to  convict.  If  he  does  arrest,  or  cause  the 
arrest,  and  furnish  the  evidence  necessary  to  convict,  then  he 
shall  have  three-fourths  of  such  fines,  forfeitures  and  penalties. 


GAME  LAWS  845 

Any  person  arresting  or  causing  to  be  arrested  offenders  under 
any  of  the  game  and  fish  laws  of  this  State  and  furnishing  the 
evidence  necessary  to  convict  such  offenders,  shall  receive  one- 
half  of  fines,  forfeitures  and  penalties  imposed  and  collected 
from  such  offenders  and  legal  fees  paid  to  constables.  The 
remaining  portion  of  fines  imposed  and  collected  shall  be  for- 
warded to  the  State  game  commissioner  and  by  him  turned 
into  the  treasury  to  the  credit  of  the  game  protection  fund.  The 
county  warden  shall  receive  twenty-five  cents  for  each  county 
license  issued  by  him,  one  dollar  for  each  state  license  and 
three  dollars  for  each  non-resident  license  issued  by  him. 

All  county  wardens  shall  keep  a  record  in  the  office  of  the 
clerk  of  the  court  in  their  respective  counties,  which  record 
shall  be  open  to  the  public,  giving  names  of  all  parties  holding 
resident,  county  and  state  license  and  non-resident  state  license 
issued  by  him.  This  record  shall  also  show  the  names,  offenses 
and  fines  imposed  on  all  persons  convicted  for  a  violation  of  the 
fish  or  game  laws  of  this  state  in  the  county  of  his  jurisdiction. 

SEC.  6.  Any  resident  of  the  State  may  procure  a  license  to 
hunt  in  his  resident  county  upon  the  payment  of  the  sum  of 
one  dollar.  License  to  such  resident  shall  be  issued  authorizing 
him  to  hunt  throughout  the  State  upon  payment  of  three 
dollars.  License  shall  be  issued  to  non-residents  of  the  State 
upon  the  payment  of  the  sum  of  fifteen  dollars,  which  shall 
authorize  such  non-resident  to  hunt  throughout  the  State.  All 
license  shall  bear  the  date  of  issuance  if  the  license  is  issued  in 
the  open  season,  and  shall  authorize  the  person  named  therein  to 
hunt  during  the  then  open  season,  and  if  issued  in  the  closed 
season,  shall  authorize  such  person  to  hunt  during  the  next 
succeeding  open  season.  Such  license  shall  be  signed  by  the 
commissioner  and  countersigned  by  the  game  warden  of  the 
county  in  which  the  license  is  issued  and  numbered.  It  shall 
contain  the  residence,  age,  sex  and  postoffice  address  of  the 
person  to  whom  issued ;  also  state  race,  approximate  height  and 
weight,  and  color  of  the  applicant's  hair  and  eyes.  The  license 
fees,  less  the  warden's  fee,  shall  be  remitted  by  the  warden  to 
the  commissioner  not  later  than  the  first  of  the  following  month. 
A  person  may  hunt  and  fish  in  the  open  season  in  his  own 
militia  district  or  on  his  own  land  without  a  license.  Tenants 
and  their  families  by  and  with  permission  of  the  owner  of  the 
land  shall  be  permitted  to  hunt  and  fish  on  the  lands  leased  and 
rented  by  them  without  a  license.  All  licenses  shall  terminate 
one  year  from  the  date  on  which  the  same  were  issued.  All 


846  GAME  LAWS 

persons  privately  owning  ponds  shall  fish  at  any  time  and  in 
any  manner  they  desire  in  said  pond. 

SEC.  7.  No  person  shall  hunt  or  fish  upon  the  lands  of 
another  with  or  without  license  without  first  having  obtained 
permission  from  such  land  owner.  Any  person  violating  this 
section  is  hereby  declared  to  be  guilty  of  a  misdemeanor,  and 
shall  be  punished  as  prescribed  in  section  twelve  of  this  act. 

SEC.  8.  All  moneys  received  by  the  commissioner  arising 
under  this  act  shall  constitute  a  fund  known  as  the  game  pro- 
tection fund,  and  shall  be  devoted  to  the  payment  of  the  salary 
of  the  commissioner,  his  necessary  incidental  expenses  and  the 
salary  of  the  game  wardens  and  deputy  wardens  when  acting 
under  the  special  instructions  from  him.  Such  salaries  and 
expenses  shall  not  be  a  charge  upon  the  state  funds,  nor  payable 
out  of  any  other  fund  than  the  game  protection  fund.  ~No 
voucher  for  said  salaries  or  expenses  shall  be  paid  unless  there 
shall  be  at  the  time  sufficient  money  to  the  credit  of  said  fund 
in  the  treasury.  If  there  should  be  any  money  in  the  treasury 
at  the  end  of  the  year  to  the  credit  of  the  game  protection  fund 
the  amount  so  remaining  shall  become  a  part  of  the  public  school 
fund  of  the  State. 

SEC.  9.  The  clerk  of  each  court  in  which  prosecutions  may 
be  instituted  for  violations  of  this  act  shall  promptly  report  to 
the  commissioner  the  result  of  said  trial  and  the  amount  of 
fines,  forfeitures  and  penalties  collected,  which  said  sum  shall, 
after  the  deductions  mentioned  in  section  5  of  this  act,  be 
forwarded  to  the  game  commissioner  and  be  placed  to  the  credit 
of  the  game  protection  fund. 

SEC.  10.  It  shall  be  the  duty  of  the  various  judges  of  the 
superior  courts  to  specially  mention  in  their  charges  to  their 
respective  grand  juries  the  provisions  of  this  act. 

SEC.  11.  The  following  shall  be  deemed  game  birds  and 
animals:  Quail,  commonly  known  as  Bob  White  Partridges; 
doves,  snipe,  woodcocks  and  curlews,  wild  turkeys,  grouse, 
pheasants,  deer,  squirrels,  duck  and  marsh  hens.  Provided,  that 
nothing  herein  contained  shall  prohibit  the  hunting  or  sale  of 
migratory  ducks,  provided  that  no  one  person  shall  kill  more 
than  fifty  ducks  in  any  one  day,  and  the  season  for  shooting 
migratory  ducks  is  between  September  1st  and  April  20th. 

SEC.  12.  Any  person  who  shall  purchase,  or  sell,  or  export 
for  sale,  or  offer  to  sell  any  of  the  game  birds  or  animals  named 
in  Section  11  of  this  act  shall  be  guilty  of  a  misdemeanor,  and 
upon  conviction,  punished  by  a  fine  of  not  less  than  ten  or  more 


GAME  LAWS  847 

than  one  hundred  dollars  and  all  costs  for  each  offense,  or  to 
work  on  the  public  works  not  less  than  ten  (10)  nor  more  than 
ninety  (90)  days,  and  any  one  or  more  of  these  punishments 
may  be  ordered  in  the  discretion  of  the  judge;  provided  that 
any  person  may  have  in  his  possession  at  any  time  any  of  the 
birds  or  wild  animals  of  this  state,  or  the  plumage,  skin  or  body 
thereof  for  propagation,  or  scientific  purposes,  or  for  pets,  pro- 
vided that  such  person  shall  register  with  the  commissioner  of 
game  and  fish  of  this  State  the  number  and  variety  of  such 
birds  or  animals,  which  he  may  have  in  his  possession,  and  how 
acquired,  and  that  such  birds  or  other  wild  animals  are  used 
only  for  propagation  or  scientific  purposes  or  for  pets,  and 
provided  further  that  such  person  may  sell  such  birds  or  other 
animals  alive  to  be  used  for  said  purposes,  and  when  so  doing, 
he  shall  report  promptly  to  the  commissioner  of  game  and  fish 
of  this  State  the  number  and  species  of  birds  and  wild  animals 
sold,  and  to  whom  sold,  and  that  the  person  buying  or  otherwise 
acquiring  such  birds  or  other  wild  animals  shall  promptly  re- 
port to  said  commissioner  the  person  from  whom  he  purchased 
or  obtained  such  birds  or  animals,  and  the  number  and  species 
thereof  so  acquired,  and  setting  forth  that  they  are  to  be  held 
and  kept  only  for  propagation  or  scientific  purposes,  or  for  pets, 
and  provided  further  that  any  such  person  who  shall  fail  to 
comply  with  the  above  regulations  shall  be  deemed  guilty  of  a 
misdemeanor;  provided  further  that  the  commissioner  of  game 
and  fish  may  in  his  discretion  issue  licenses  or  permits  to  any 
person  or  persons  to  take  any  of  the  birds  or  wild  animals  or  the 
plumage,  skin  or  body  thereof,  or  the  nests  or  eggs  of  the  same 
for  propagation  or  scientific  purposes,  or  for  pets,  under  such 
regulations  and  restrictions  as  may  be  imposed  by  said  com- 
missioner of  game  and  fish ;  provided  further  that  such  licenses 
or  permits  may  be  issued  by  the  said  commissioner  of  game  and 
fish  upon  the  payment  of  a  fee  of  one  dollar,  and  that  the  same 
may  be  revoked  at  the  pleasure  of  the  said  commissioner  at  any 
time,  and  that  such  permits  or  licenses,  unless  sooner  revoked 
shall  be  good  for  one  year  from  the  date  of  issuance;  provided 
further  that  any  person  may  transport  or  ship  from  any  point 
within  this  State  to  any  other  point  within  this  State  birds  or 
wild  animals  alive  for  propagation  or  for  scientific  purposes, 
and  that  the  transportation  companies  may  accept  such  ship- 
ments, and  that  both  the  shipper  and  the  transportation  company 
accepting  such  shipments  shall  on  the  same  day  that  the  ship- 
ment is  made  report  to  the  commissioner  of  game  and  fish  of 


848  GAME  LAWS 

this  State  the  number  and  species  of  such  birds  or  wild  animals 
shipped,  and  to  whom  and  by  whom  shipped ;  provided  that 
any  violation  of  the  provisions  of  this  section  shall  be  punished 
as  provided  in  said  section  12  as  amended. 

SEC.  13.  Any  person  who  shall  transport  or  ship,  or  offer 
to  transport  or  ship,  any  of  the  game  birds  or  animals  men- 
tioned in  section  11  of  this  act,  without  the  limits  of  the  State, 
or  from  the  county  in  which  the  game  was  killed,  into  another 
county  in  this  State,  or  who  shall  sell  or  offer  for  sale,  or  pur- 
chase or  offer  to  purchase  any  part  of  the  plumage,  skin  or  body 
of  any  of  the  game  birds  or  animals  mentioned  in  section  11, 
or  who  shall  take  or  wilfully  destroy  the  nests  or  eggs  of  any 
of  the  said  birds,  except  as  provided  in  section  12  of  this  act, 
shall  be  guilty  of  a  misdemeanor,  and  upon  conviction,  shall 
be  punished  as  prescribed  by  section  12  of  this  act;  provided, 
it  shall  be  lawful  for  any  person  duly  authorized  to  hunt,  to 
personally  transport,  openly,  the  game  actually  killed  by  him, 
from  the  county  in  which  it  was  killed  to  any  county  of  this 
State,  or  without  the  State,  but  the  person  killing  said  game 
must  in  each  instance  accompany  the  game  so  killed.  Each 
person  hunting  shall  carry  with  him  his  license  and  exhibit  the 
same  promptly  upon  the  request  of  any  game  warden  or  deputy 
warden, « or  ex-officio  warden. 

SEC.  14.  Any  person  who  shall  hunt,  kill  or  destroy,  by  any 
means  whatever,  or  who  is  in  possession  of  the  following  named 
birds  or  animals,  except  between  the  following  dates,  except  as 
provided  in  section  12  of  the  act  approved  August  21,  1911,  as 
amended,  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 
shall  be  punished  as  prescribed  in  section  12  of  this  act:  quail, 
commonly  known  as  Bob  White  Partridges;  wild  turkey  gob- 
blers and  plovers,  from  November  20th  to  March  1st  following; 
woodcock  and  summer  or  wood  duck  from  September  1st  to 
January  1st  following;  doves  from  August  1st  to  August  31st, 
and  from  November  20th  to  March  1st  following;  deer  from 
October  1st  to  December  1st  following;  cat  squirrel  from  Octo- 
ber 1st  to  March  1st  following  of  each  year,  provided  that  no 
person  shall  kill  more  than  fifteen  (15)  cat  squirrels  in  any 
one  day.  It  shall  be  unlawful  any  time  of  the  year  to  scatter 
upon  the  lands  of  any  person  whether  it  be  the  owner  of  the 
land  or  not,  any  corn,  wheat  or  grain,  or  to  bait  for  the  purpose 
of  drawing  to  the  lands  where  such  bait  is  scattered  or  placed, 
game  birds  or  doves,  for  the  purpose  of  shooting  or  allowing 
to  be  shot  at,  or  killed  such  game  birds  or  doves  at  or  near  the 


GAME  LAWS  849 

lands  so  baited,  and  it  shall  be  unlawful  for  any  person  to  shoot 
at  or  kill  any  dove  or  other  game  bird  at,  upon,  or  over  or  near 
any  land  baited  or  baited  field  or  land.  It  shall  be  unlawful 
for  any  person  to  kill  any  fox  squirrel  prior  to  January  1,  1918, 
and  for  violations  of  these  provisions  of  this  section  such  person 
or  persons  shall  be  punished  as  is  prescribed  by  section  12  of 
the  act  approved  August  21,  1911,  as  amended.  Provided,  that 
this  shall  not  prevent  the  killing  of  squirrels  while  destroying 
corn  or  other  cultivated  vegetation. 

SEC.  15.  During  the  open  season  no  one  person  shall  be 
authorized  to  kill  more  than  two  (2)  deer,  nor  more  than  two 
(2)  wild  turkeys  during  any  one  season,  nor  more  than  twenty- 
five  (25)  game  birds  of  any  one  species  in  any  one  day.  Any 
person  violating  this  section  shall  be  guilty  of  a  misdemeanor 
and  punished  as  prescribed  in  section  12  of  this  act. 

SEC.  16.  Any  person  who  shall  catch  or  kill  any  wild 
pheasant,  grouse,  or  fawn,  or  any  imported  game  birds  or  game 
animals  prior  to  December  1,  1916,  shall  be  guilty  of  a  misde- 
meanor, and  upon  conviction,  punished  as  is  prescribed  in  sec- 
tion 12  of  this  act. 

SEC.  17.  Any  person  who  shall  at  any  time  kill  or  capture 
or  wound  any  game  bird  or  animal  by  the  use  of  pitfall,  dead- 
fall, snare,  trap,  pen  or  other  device,  or  by  the  use  of  any  poison, 
drug  or  explosive,  or  who  shall  hunt,  catch,  or  kill  any  game 
birds  or  animals  at  night  shall  be  guilty  of  a  misdemeanor,  and 
upon  conviction,  punished  as  prescribed  in  section  12  of  this 
act. 

SEC.  18.  Any  person  who  shall  hunt,  without  first  obtaining 
a  license,  except  upon  his  own  land,  or  in  his  own  militia  dis- 
trict, or  who  lends  or  transfers  his  license  to  another,  or  who 
shall  hunt  upon  the  lands  of  another  without  first  having  ob- 
tained his  consent  to  do  so,  except  persons  following  hounds  in 
pursuit  of  foxes  or  deer,  or  any  other  animal  not  mentioned  in 
tjbis  act  in  or  upon  or  through  the  unenclosed  or  uncultivated 
lands  of  another,  shall  be  guilty  of  a  misdemeanor  and  upon 
conviction,  punished  as  prescribed  in  section  12  of  this  act. 

SEC.  19.  Any  common  carrier  who  shall  ship,  or  transfer, 
or  carry  any  game  birds  or  animals  without  the  limits  of  this 
State,  except  as  herein  provided,  shall  be  guilty  of  a  misde- 
meanor, and  upon  conviction,  punished  as  prescribed  in  section 
12  of  this  act ;  provided,-  the  terms  of  this  section  shall  not  apply 
to  game  in  the  personal  possession  of  the  party  killing  the  same ; 
provided,  such  party  has  obtained  a  license  then  of  force. 


850  FISH  LAWS 

SEC.  20.  Any  agent  or  employee  of  a  common  carrier  who 
shall  receive  any  game  bird  or  animal  for  shipment  without  the 
State,  or  from  one  county  to  another  county  within  this  State, 
except  as  herein  provided,  shall  be  guilty  of  a  misdemeanor,  and 
upon  conviction,  punished  as  is  prescribed  in  section  12  of  this 
act. 

SEC.  21.  Any  warden,  deputy  warden  or  ex-officio  warden 
who  shall  fail  to  perform  any  act  or  duty  placed  upon  him  by 
this  act,  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction, 
shall  be  punished  as  prescribed  in  section  12  of  this  act. 

SEC.  22.  All  moneys  received  by  the  commissioner  arising 
from  the  provisions  of  this  act  shall  be  deposited  in  the  State 
treasury  to  the  credit  of  the  game  protection  fund,  and  said 
fund  shall  not  be  drawn  upon  or  used  for  any  purpose  save  such 
as  is  designated  in  this  act. 

SEC.  23.  It  shall  be  unlawful  for  any  person  in  this  State  to 
kill,  catch  or  have  in  his  possession  any  wild  non-game  bird,  or 
to  take  or  destroy  the  nests  or  eggs  of  any  non-game  birds  or  to 
have  the  same  in  his  or  her  possession.  Such  persons  violating 
the  provisions  of  this  section  shall  be  guilty  of  a  misdemeanor, 
and  upon  conviction,  punished  as  is  prescribed  in  section  12  of 
this  act;  provided  this  section  shall  not  apply  to  the  following 
birds :  English  sparrows,  owls,  hawks,  eagles,  crows,  rice  birds 
and  field  or  meadow  lark;  except  persons  may  ship  into  this 
State  birds  mounted  for  millinery. 

SEC.  24.  The  game  commissioner  and  wardens  shall  see  that 
the  laws  pertaining  to  fish  are  rigidly  enforced. 

SEC.  25.  All  laws  and  parts  of  laws  in  conflict  with  this  act 
are  hereby  repealed. 

SEC.  26.  That  it  shall  be  lawful  to  kill  buzzards  at  any  and 
all  times  of  the  year. 

See  590  Criminal  Code,  1911.  If  any  person  shall  hunt  or 
catch  o'possum  between  the  first  day  of  March  and  the  first  day 
of  October  of  each  year,  he  shall  be  guilty  of  a  misdemeanor.  . 


GEORGIA  CHART. 


OPEN   SEASONS. 


Deer,  either  sex ....'. October  1st  to  December  1st 

Cat  Squirrels   October  1st  to  March  1st 

O'Possum . .  October  1st  to  March  1st 


GAME  LAWS  851 

Quail  or  Bob  White,  Wild  Turkeys, 

Plovers November  20th  to  March  1st 

Doves August  lst-31st  inc.,  Nov.  20th  to  March  1st 

Woodcock,  Wood  or  Summer  Duck .  .  September  1st  to  Jan.  1st 
Migratory  Duck  (Nat'l  Law,  Nov.  1st  to  Feb.  1st) — 

September  1st  to  April  20th 

Snipe National  Law,  November  1st  to  February  1st 

Marsh  Hens National  Law,  Sept.  1st  to  Dec.  1st 


BAG  LIMIT. 

Deer 2  in  one  season 

Cat  Squirrels 15  in  one  day 

Quail,  Doves,  Summer  or  Wood  Duck,  Woodcock, 
Snipe  and  all  Game  Birds  except  Migratory 

Ducks 25  in  one  day 

Migratory  Ducks 50  in  one  day 

Absolute  protection  is  given,  for  a  period  of  years,  to  Fox 
Squirrels,  Fawns,  Pheasants,  Grouse  and  all  imported  Game 
Birds  and  animals.  ~ 


LICENSE  FEES. 


To  Residents  good  in  home  county  only,  $1.00. 
To  Residents,  good  in  any  county  in  state,  $3.00. 
To  Non-Residents,  good  in  any  county,  $15.00. 


FISH  LAWS. 


(Criminal  Code,  1911.) 


SEC.  600.  No  person  shall  inhabit,  occupy,  or  reside  in  any 
vessel,  ark,  or  flat  on  any  river  of  this  State,  which  shall  not  be 
engaged  in  the  lawful  commerce  of  said  river  in  the  carriage  of 
goods  or  produce  to  or  from  market  unless  owned  by  the  pro- 
prietors of  the  shores,  or  their  lessees ;  provided,  nothing  in  this 
section  shall  be  construed  to  prevent  the  owners  of  the  land  on 
said  rivers,  or  their  lessees,  from  taking  fish  in  the  river  opposite 
their  banks ;  but  no  seine  shall  be  permitted  to  be  used  in  said 


852  FISH  LAWS 

river  either  by  such  owners  or  lessees,  from  twelve  o'clock  Sat- 
urday night  to  twelve  o'clock  Sunday  night ;  and  provided  also, 
that  every  lease  or  license  to  fish  shall  be  recorded  within  ten 
days  after  the  granting  thereof  in  the  clerk's  office  of  the  su- 
perior court  of  the  county  where  the  land  lies.  A  violation  of 
any  of  the  foregoing  provisions  shall  be  punished  as  a  mis- 
demeanor. 

SEC.  601.  No  person,  other  than  the  proprietors  of  the 
shores  and  banks  of  salt  creeks,  estuaries,  and  rivers  (or -such 
person  as  shall  be  by  such  proprietor  authorized),  shall  take 
fish,  or  attempt  to  do  so,  with  any  line,  net,  or  contrivance,  on 
any  estuary,  or  river,  where  an  artificial  shell-reef,  beds  or  fish- 
ing grounds  have  been  constructed  within  one  hundred  yards 
thereof.  Nor  shall  one  proprietor  construct  or  use  such  places 
opposite  the  shore  or  bank  of  another  proprietor  beyond  the 
center  of  creek,  estuary,  or  river  opposite  his  own  shore  or  bank. 
Any  person  violating  the  provisions  of  this  section  shall  be 
guilty  of  a  misdemeanor. 

SEC.  602.  If  any  person  shall  put  any  trap,  wire,  trot-line, 
set-line,  or  other  like  contrivances,  for  catching  fish  for  sale,  in 
any  of  the  lakes  or  other  waters  of  the  State,  upon  or  within 
the  lands  of  another,  without  the  written  consent  of  the  owner 
thexeof,  he  shall  be  guilty  of  a  misdemeanor. 

SEC.  603.  If  any  person  shall  place  in  the  waters  of  any 
river  or  creek,  or  any  fresh  water  drain  any  dam,  trap,  net, 
seine,  or  other  device  for  catching  fish,  unless  the  main  channel 
of  sueh  stream  is  left  open  for  a  space  of  ten  feet  for  rivers  and 
one-third  of  the  channel  of  creek,  at  low-water  mark,  unob- 
structed for  the  free  passage  of  fish  up  or  down  such  stream, 
he  shall  be  guilty  of  a  misdemeanor,  and  the  sheriff  of  the 
county,  upon  complaint  of  persons  in  the  territory  of  such  ob- 
struction shall  have  authority  to  break  open  any  dam,  net,  or 
other  obstruction  that  may  be  placed  in  such  waters  in  violation 
of  this  section.  This  section  does  not  apply  to  dams  for  milling 
or  manufacturing  purposes.  The  words  "low-water  mark". shall 
not  apply  to  fresh  water  mains. 

SEC.  604.  If  any  person  shall  use  firearms,  dynamite,  or 
other  explosive  or  destructive  substances  for  the  purpose  of  kill- 
ing fish,  he  shall  be  guilty  of  a  misdemeanor. 

SEC.  605.  If  any  person  shall  use  nets,  seines,  or  other  con- 
trivances covering,  extending  to,  or  obstructing  more  than  one- 
half  of  the  stream,  for  catching  or  taking  shad  in  any  of  the 
streams  of  this  State,  he  shall  be  guilty  of  a  misdemeanor. 


FISH  LAWS  853 

SEC.  606.  There  shall  be  a  "closed  time"  for  the  rivers  in 
which  shad  are  caught,  of  forty-eight  hours:  commencing  at 
sunrise  on  Saturday  morning  of  each  week,  and  ending  at  sun- 
rise On  Monday  morning  of  the  next  week  during  which  "closed 
time"  no  shad  or  other  migratory  fish  shall  be  caught  by  nets, 
wires,  pounds,  or  any  other  means  whatever;  neither  shall  such 
nets,  wires,  pounds,  or  other  apparatus  be  left  in  said  rivers 
during  said  "closed  time."  The  meshes  of  nets  or  other  appa- 
ratus for  catching  said  fish  shall  not  be  less  than  five  inches. 

SEC.  607.  No  shad  shall  be  taken,  except  between  the  first 
day  of  January  and  the  twentieth  day  of  April  of  each  year  ex- 
cept for  spawning  purposes,  to  carry  out  the  provisions  of  the 
law  for  propagating  fish. 

SEC.  608.  A  violation  of  either  of  the  two  preceding  sec- 
tions shall  be  a  misdemeanor. 

SEC.  609.  If  any  person  shall  seine  or  net  fish  in  any  of 
the  streams  in  which  mountain  trout  exist,  or  be  placed,  he  shall 
be  guilty  of  a  misdemeanor. 

SEC.  611.  Any  person  who  shall  directly  by  himself,  or  by 
aiding  or  abetting  others,  put  walnut  hulls,  walnut  leaves,  devil 
shoestring,  or  any  poisonous  substances  whatever  of  any  kind 
in  any  waters,  either  running  streams  or  standing  waters,  such 
as  lakes,  ponds,  or  eddy  places  in  any  river  or  creek  within  the 
limits  of  this  State,  which  will  be  likely  to  drive  away  or  poison 
the  fish  therein  by  contaminating  said  waters,  shall  be  guilty  of 
a  misdemeanor. 

SEC.  612.  If  any  person  shall  catch  or  take  any  fish  with 
seine,  net,  gig,  or  spear,  or  like  device  from  any  of  the  waters 
of  this  State,  between  the  first  day  of  February  and  the  first  day 
of  July  in  each  year,  except  with  hook  and  line,  he  shall  be 
guilty  of  a  misdemeanor. 

SEC.  613.  In  the  case  of  shad  the  above  prohibition  as  to 
dates  shall  apply  only  between  the  15th  of  April  and  the  1st  of 
July. 

SEC.  614.  Whoever  shall  catch  any  shad  or  other  fish,  or 
use  for  the  purpose  of  catching  shad  or  other  fish,  in  any  of  the 
waters  of  this  State,  any  net  or  nets  known  as  drift-nets,  be- 
tween the  hours  commencing  at  sundown  on  Thursday  of  each 
week  and  ending  at  sunrise  on  Monday  morning  of  the  next 
week,  shall  be  guilty  of  a  misdemeanor. 

Above  repealed  by  act  of  November  27,  1915,  only  as  apply- 
ing to  the  salt  waters  of  this  State. 


854  FISH  LAWS 

SALT  WATER  FISH  LAWS. 


"-An  Act  for  the  protection  and  propagation  of  fish,  shrimp, 
prawn,  oysters,  turtles,  terrapins  and  other  crustaceans  in  this 
State;  providing  how  the  same  may  be  taken  and  caught  from 
the  salt  waters  of  this  State;  providing  for  a  license  for  the 
taking  and  catching  of  the  same;  the  appointment  of  special 
inspectors  to  enforce  the  provisions  of  this  Act,  prescribing  their 
duties,  and  to  provide  penalties  for  a  violation  of  this  Act,  and 
for  other  purposes." 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  the 
State  of  Georgia,  and  it  is  hereby  enacted  by  the  authority  of 
the  same,  That  from  and  after  the  passage  of  this  Act,  all  of  the 
beds  of  all  salt  waters,  bays,  rivers,  estuaries  and  shores  of  the 
sea,  and  the  waters  overlying  the  same,  within  this  State  and 
not  already  conveyed  by  special  grant  or  compact,  according  to 
law,  shall  continue  and  remain  the  property  of  the  State  of 
Georgia,  and  subject  to  the  special  provisions  of  this  Act  may 
be  used  in  common  by  the  people  of  this  State  for  the  purpose 
of  fishing,  taking  and  catching  oysters,  shrimp,  prawn,  turtles, 
terrapins  and  other  shell  fish,  and  no  grant  shall  hereafter  be 
issued  by  the  county  authorities  in  any  county  in  this  State  to 
pass  any  estate,  title  or  interest  of  the  State  in  or  to  any  natural 
oyster  bed,  rock,  or  shoal,  whether  the  said  bed,  rock  or  shoal 
shall  be  bare  or  not,  except  in  compliance  with  the  provisions 
of  this  Act. 

SEC.  2.  Be  it  further  enacted  by  the  authority  aforesaid. 
That  after  the  passage  of  this  Act,  so  far  as  the  authority  of  the 
said  State  shall  extend,  oysters,  clams  and  other  fish,  crabs, 
shrimp,  prawn,  turtles  and  terrapins,  and  other  crustaceans 
found  in  the  salt  waters  of  this  State,  suitable  for  food,  shall 
be  considered  fish,  and  it  shall  be  the  duty  of  the  Department 
of  Game  and  Fish,  as  established  by  the  Act  of  August  21, 
1911,  to  enforce  the  laws  of  the  State  of  Georgia  for  the  pro- 
tection of  the  same. 

SEC.  3.  Be  it  further  enacted  by  the  authority  aforesaid, 
That  after  the  passage  of  this  Act  the  said  Game  and  Fish  Com- 
missioner shall  have  authority  to  employ  not  exceeding  three 
inspectors  to  carry  into  effect  the  provisions  of  the  laws  of  this 
State  for  the  protection  of  game  and  fish ;  said  inspectors  shall 
receive  salaries  not  exceeding  one  hundred  dollars  ($100.00) 
per  month,  as  may  be  ordered  by  the  Commissioner.  They  shall 
take  oath  and  give  bond  in  the  sum  of  one  thousand  dollars 


FISH  LAWS  855 

($1,000.00)  for  the  faithful  performance  of  their  duties.  These 
inspectors  shall  have  authority  to  carry  out  the  provisions  of  this 
Act  and  to  arrest  persons  violating  the  provisions  thereof,  or  any 
of  the  laws  of  said  State  covering  the  protection  of  game  and 
fish. 

SEC.  4.  Be  it  further  enacted  by  the  authority  aforesaid, 
That  the  State  Game  and  Fish  Commissioner  shall  have  author- 
ity to  purchase  or  lease  launches  for  the  use  of  the  inspectors, 
while  in  active  service  of  the  Department,  and  for  carrying  out 
the  provisions  of  this  Act.  Said  State  Game  and  Fish  Com- 
missioner is  hereby  empowered  and  directed  to  employ  such 
other  help  as  he  may  deem  necessary  in  carrying  out  the  pro- 
visions of  this  Act  and  the  other  laws  of  the  State  for  the  pro- 
tection of  game  and  fish.  Compensation  for  such  service  to  be 
paid  out  of  funds  derived  for  the  protection  of  game  and  fish. 

SEC.  5.  Be  it  further  enacted,  That  all  boats  and  vessels 
engaged  in  taking  oysters  for  purpose  of  sale  from  any  of  the 
beds  in  this  State,  whether  the  .same  be  private  or  public  beds, 
shall  before  beginning  operation,  first  secure  a  license  from 
the  said  Commissioner  of  Game  and  Fish,  and  for  this  pur- 
pose the  owner,  captain  or  agent  of  said  vessel  must  present 
in  writing  an  application  setting  forth  the  name  and  descrip- 
tion of  said  vessel,  the  name  and  postoifice  address  of  the  owner 
and  captain,  the  number  of  the  crew,  and  such  further  data  as 
the  Commissioner  shall  deem  necessary,  and  thereupon  said 
Commissioner  shall  register  said  vessel  and  issue  necessary  li- 
cense, upon  payment  of  the  cost  thereof.  All  licenses  shall  be 
graduated  according  to  the  oyster-carrying  capacity  of  each 
boat  or  vessel,  and  shall  be  as  follows: 

A  license  tax  of  one  dollar  per  ton  or  fraction  of  a  ton  is 
hereby  levied  on  each  such  vessel  or  boat  of  five  tons  or  over  net 
register.  On  all  other  such  boats  propelled  by  sail  or  power,  a 
license  tax  of  five  dollars  for  each  boat  is  hereby  levied,  and  on 
all  such  skiffs,  batteaux,  and  other  boats  not  propelled  by  sail 
or  power,  a  license  tax  of  three  dollars  is  hereby  levied. 

License  shall  be  issued  by  the  Commissioner  on  blanks  pro- 
vided for  that  purpose. 

The  owner  of  any  such  vessel  desiring  to  catch  or  take  oysters 
under  the  provisions  of  this  Act  shall  first  obtain  from  the 
Commissioner  of  Game  and  Fish  a  license  for  said  boat,  said 
license  shall  have  effect  for  twelve  months  from  the  first  day  of 


856  FISH  LAWS 

the  month  in  which  it  is  issued,  and  no  vessels  shall  be  used  for 
catching  and  fishing  for  oysters  in  the  waters  of  this  State,  un- 
less so  licensed.  Each  license  shall  state  the  name  of  the  appli- 
cant, the  name  of  the  vessel,  and  the  license,  under  the  pro- 
visions of  this  Act,  shall  not  be  used  except  upon  vessel  so 
mentioned  in  said  license.  Said  Commissioner  shall  have  the 
right  to  use  and  expend  the  moneys  received,  under  the  pro- 
visions of  this  Act,  for  carrying  out  the  provisions  of  the  Act 
so  far  as  such  expenditure  may  be  necessary,  and  the  residue, 
if  any,  shall,  from  time  to  time,  be  paid  into  the  Treasury  of 
the  State,  to  be  applied  as  other  surplus  funds  in  the  Game  and 
Fish  Department  under  existing  laws. 

SEC.  6.  Be  it  further  enacted  by  the  authority  aforesaid, 
That  it  shall  be  unlawful  for  any  person,  except  owners  and 
their  authorized  agents  and  employees,  to  take,  catch,  or  tong 
oysters,  from  any  of  the  private  or  public  beds  of  this  State 
between  sunset  and  sunrise.  Any  person  violating  the  pro- 
visions of  this  section  shall  be  guilty  of  a  misdemeanor. 

SEC.  7.  Be  it  further  enacted  by  the  authority  aforesaid, 
That  from  and  after  the  passage  of  this  Act,  it  shall  be  unlaw- 
ful to  take  or  catch  any  fish,  within  the  definition  of  that  term 
as  in  this  Act  expressed,  from  any  of  the  salt  waters  of  this 
State,  by  the  use  of  any  device  whatever  between  the  first  day  of 
May  and  the  first  day  of  August  of  each  year. 

Provided,  that  the  foregoing  penal  provisions  shall  not  be 
construed  to  prohibit  the  taking,  by  any  person,  of  such  fish, 
with  a  cast  net  or  hook  and  line,  nor  shall  it  apply  to  or  pro- 
hibit the  use  of  hand-drawn  seines  not  more  than  thirty  feet  in 
length,  when  used  in  catching  prawn  and  shrimp  for  bait,  or 
other  fish  to  be  sold  in  local  retail  trade  by  the  persons  taking 
the  same,  or  to  be  used  for  the  personal  consumption  of  the  fish- 
erman. Nor  shall  the  same  apply  to  the  taking  of  crabs. 

SEC.  8.  It  shall  be  unlawful  for  any  person  to  catch  or 
take  any  of  the  above  mentioned  fish  for  commercial  purposes 
from  the  salt  waters  of  this  State,  within  the  time  above  men- 
tioned, otherwise,  without  first  obtaining  a  license  from  the 
Commissioner  of  Game  and  Fish,  as  hereinafter  provided.  Any 
person  desiring  to  catch  or  take  any  such  fish  from  the  salt 
waters  of  this  State,  except  in  the  manner  as  aforesaid  shall 
first  obtain  from  the  Commissioner  of  Game  and  Fish  a  license 


FISH  LAWS  857 

therefor;  said  license  shall  have  effect  for  twelve  months  from 
the  first  day  of  the  month  in  which  it  is  issued.  The  fee  for 
such  license  shall  be  one  dollar  per  ton  or  fraction  of  a  ton  on 
each  boat  or  vessel  of  five  tons  or  over  net  register.  On  all 
boats  propelled  by  sail  or  power,  the  same  being  under  five 
tons  net  register,  a  license  tax  of  five  dollars  for  each  such  boat 
is  hereby  levied,  and  on  all  such  skiffs,  batteaux  and  other  boats 
not  propelled  by  sail  or  power  a  license  tax  of  three  dollars 
on  all  such  boats  is  hereby  levied. 

SEC.  9.  Be  it  further  enacted  by  the  authority  aforesaid, 
That  if  any  person  not  a  citizen  of  this  State  shall  take  or  catch 
any  oysters,  fish,  shrimp,  prawn,  turtle,  terrapin  or  other  crus- 
tacean from  the  salt  waters  of  this  State  in  any  manner  what- 
soever, for  the  purpose  of  selling,  that  he  shall  be  guilty  of  a 
misdemeanor. 

SEC.  10.  Be  it  further  enacted  by  the  authority  aforesaid, 
That  the  expense  of  salaries  of  the  inspectors,  or  any  other  ex- 
pense authorized  to  be  incurred,  shall  be  paid  out  of  the  fund 
arising  from  the  operation  of  the  game  and  fish  laws  of  this 
State,  and  that  any  residue,  if  any,  shall  be  turned  into  the 
State  Treasury  from  time  to  time  to  be  applied  as  other  surplus 
funds  in  the  Game  and  Fish  Department  under  existing  laws. 
The  Commissioner  of  Game  and  Fish  shall  have  authority  to 
provide  such  rules  and  regulations  as  may  be  needful  in  carry- 
ing into  effect  the  game  and  fish  laws  of  this  State,  provided, 
that  same  be  not  inconsistent  with  the  laws  of  this  State.  The 
robbing  or  breaking  up  of  turtle  and  of  terrapin  nests,  or  the 
destroying  of  the  eggs  of  the  same,  or  the  turning  over  of  turtles 
and  allowing  them  to  remain  so  turned  is  forbidden,  and  any 
person  guilty  of  the  same  shall  be  punished  as  for  a  misde- 
meanor. 

SEC.  11.  Bt  it  further  enacted  by  the  authority  aforesaid, 
That  any  person  violating  any  of  the  provisions  of  this  Act  shall 
be  guilty  of  a  misdemeanor. 

SEC.  12.  Be  it  further  enacted  by  the  authority  aforesaid, 
That  all  laws  and  parts  of  laws  in  conflict  with  this  Act,  and  all 
laws  prohibiting  the  taking  of  salt  water  fish  at  any  other  sea- 
son of  the  year  than  as  herein  expressed  be  and  the  same  are 
hereby  repealed. 

Approved  November  27,  1915. 


858  FISH  LAWS 

SAW  DUST,  FLOATING  INTO  STKEAMS  PROHIBITED. 


An  Act  to  prohibit  the  floating  of  saw  dust  into  any  of  the 
streams  of  this  State,  and  for  other  purposes. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  the 
State  of  Georgia,  and  it  is  hereby  enacted  by  authority  of  the 
same,  That  from  and  after  the  passage  of  this  Act,  it  shall  be 
unlawful  to  float  saw  dust  into  any  of  the  streams  of  this  State. 

SEC.  2.  Be  it  further  enacted,  That  any  person  or  persons 
or  corporations  violating  the  provisions  of  Section  1  of  this  Act 
be  punished  as  for  a  misdemeanor. 

SEC.  3.  Be  it  further  enacted,  That  this  Act  shall  not  go 
into  effect  in  any  county  until  it  has  been  recommended  by  two 
grand  juries  of  the  county. 

SEC.  4.  Be  it  further  enacted,  That  all  laws  and  parts  of 
laws  in  conflict  with  this  Act  be,  and  the  same  are,  hereby  re- 
pealed. 

Approved  August  19,  1911. 


APPLICATION  FOR  LICENSE. 


State  or  Georgia.  ,  19 

To County  Warden 

")       County  License  ) 

Please  issue  to  me     r      State  License 

)      Non-Resident  License    ) 

for  which  I  hand  you  herewith  $ My  age  is 

Sex ;  Race ;  My  height  is feet inches ; 

Weight ;   Color  of  hair ;   Color  of  eyes ; 

My  postoffice  address  is And  I  agree  not  to 

abuse  the  rights  conferred  by  said  license  or  infract  any  of 
the  laws  of  this  State,  intended  for  the  protection  of  game  and 
fish. 

'p.*  b"!!" !!!!!!!!!!!!!!!!!!!!!!!!'.!!!'. 

(Kindly  indicate  your  street  or  R.F.D.) 
RECEIPT  TO  APPLICANT  FOB  LICENSE. 


Received  from $ together  with  appli- 
cation for  license  for  boat  named .  ,  The  owner  or 


FISH  LAWS  859 

agent  is The  Captain's  name  is , 

of Georgia.     Number  of  crew 

This  receipt  to  serve  in  lieu  of  license  for  not  exceeding  ten 
days,  or  until  license  may  be  received  from  Commissioner  of 
Game  and  Fish,  and  in  the  event  of  it  developing  that  there 
are  any  material  misrepresentations  contained  in  said  Appli- 
cation, and  because  of  such  misrepresentations  the  said  Com- 
missioner should  refuse  or  decline  to  issue  license,  fee  above 
acknowledged  will  be  returned,  less  fifty  cents  to  cover  cost 
applying  to  such  case. 

Authorized  by  Commissioner  to  Issue  this  Receipt. 

County. 
,  19,  . 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


ABATEMENT  OF  ACTIONS. 
Lis  pendens,  plea,  170,  619. 
Pleas  in  abatement,  169,  170. 

Criminal  case,  820. 

Justice  court,   plea  on  appeal, 
124. 

ABSENCE. 

Continuance  for  absence  of  coun- 
sel, party  or  witness,  19,  20,  25, 
27. 

ACCORD   AND   SATISFACTION. 
Plea,  171. 
ACCOUNT. 

Administrator,  final  settlement,  261- 
263. 

Sales,  218,  230. 
Books,   evidence,   37-40. 
Decedent's  estate,  against,  244. 
Definition,  108. 
Stated,  definition,  109. 
ACCOUNT,  ACTION  ON. 
Affidavit  for  proof  of  account,  173. 
Commencement    in    justice    court, 
173,  174. 

Superior  or  city  court,  176. 
Complaint  in  superior  or  city  court, 

176. 

Copy  of  note  sued  on,  175,  177,  711. 
Counter  affidavit,  98,  111,  174,  589. 
Justice  court,  answer,  97,  98. 

Decisions  relating  to,  112-117. 

Evidence,  109. 

Limitation  of  actions,  109. 

Pleas,  103. 

Summons,  97,  173,  174. 

Verification,  97,  98,  110. 
Limitation  of  actions,  109. 
Manifold  copy  of  notice  for  attor- 
ney's fees,  178,  712. 
Mutual  accounts,  limitations,  109. 
Note  providing  for  attorney's  fees, 

175,  178,  710-712. 

Notice  to  defendant  to  recover  at- 
torney's fees  on  note,  175,  178, 
712. 


ACCUSATION. 

City  or  county  court,  affidavit,  828. 

Demand  for  jury,   829. 

Form,  829. 

Verdict,  829. 

Waiver,  829. 
Demand  for  copy,  817. 
ACKNOWLEDGMENT. 

See  Attestation. 

Bill  of  exceptions,  service,  691,  697. 
Deeds,  execution  of,  389. 
Injunction,  motion  to  dissolve,  547. 
Notice  to  produce  papers,  service, 
664. 

ACTIONS. 

Commencement  of    declaration    or 

petition,  385-387. 
What  is  cause  of  action,  93,  94. 

ADJOURNMENT. 

Depositions,  proceedings  for  taking, 
73. 

ADMEASUREMENT. 
Dower,  433-437. 

ADMINISTRATORS  AND  EXECU- 
TORS. 

Account  against  estate,  244. 
-Affidavit,  244. 

Receipt  to  administrator,  244. 
Accounting,     see     Final  settlement, 

post. 
Action, 

Judgment   against     administra- 
tor, 257,  258. 
Plea     plene     administravit 

sustained,  259. 
Quando  acciderint,  258. 
Plea  of  ne  .unques  administra- 
tor, 254. 

Plene  administravit,  255. 
Plene     administravit   prae- 

ter,  255. 

Revocation  of  letters,  257. 
Statute  of  limitations,  256. 
Annual  returns,  affidavit  of  security 
where   administrator  has   re- 
moved from  State,  250. 
Caveat  to,  250. 


862 


INDEX 


t REFERENCES   ARE    TO   PAGES.] 


ADMINISTRATORS  AND   EXECU- 
TORS— ConVd. 
Annual  returns — Cont'd. 
Form,  248. 

Non-resident  administrator,  251. 
Order  of  ordinary,  249,  251. 
Order  overruling  caveat,  2.50. 
Rule  absolute  for  not  making, 

249. 

Rule  nisi  for  not  making,  249. 
Appeal,    temporary     administration 

pending,  183. 
Application  for  administration,  180, 

184,  188,  191,  193,  195,  196. 
Bond, 

Additional  security,  application 

to  require,  210. 
Order,  211. 
Rule  absolute,  212. 
Rule  nisi,  212. 
Approval,  208. 
Compelling   executor    to    give, 

791,    792. 

County  administrator,  207. 
Justification  of  obligors,  208. 
New   security,   210. 
Order        on       application       to 

strengthen,  209. 
Permanent   administrator,    200. 
Refunding,    264. 
Relief  of  security,   application, 

209. 
Removal  for  failure  to  give,  267, 

268. 

'     Successor  of  administrator  re- 
signing, 270. 

Temporary  administrator,  182. 
Strengthening,  209-212. 
Bond  for  title,  application  to  require 
administrator    to    make,    202- 
207. 

Deed  in  pursuance  of  order,  205. 
Notice  to  heirs,  204. 
Order  to  file  return,  207. 
Petition  of  holder  of  bond,  202. 
Return  after  making  deed,  206. 
Rule  absolute,  204. 
Rule  nisi,  203. 

Caveat  to  application  for  adminis- 
tration, 199. 

Citation,  county  administrator,  194. 
Creditor's  application,  192. 
De  bonis  non,  administration, 

184.  ' 

With  will  annexed,  admin- 
istration, 187. 


ADMINISTRATORS  AND  EXECU- 
TORS— ConVd. 
Citation — Cont'd. 

Permanent  administration    190, 

198. 

Superior  court  clerk,  195,  196. 
Clerk  of  superior  court,  see  Supe- 
rior court  clerk,  post. 
Commencement  of  declaration     or 
petition,  executor  suing,  386. 
Suit  by  administrator  with  will 

annexed,  386. 

Commissions,  forfeiture,  252,  253. 
Compensation,      extra,     allowance, 

251,   252. 
Forfeiture  of  commissions,  252, 

253. 

Compromise  of  claims,  236,  237. 
County    administrator,    application 
to  vest  administration  in,  193. 
Bond,  207. 
Citation,    194. 
Order  appointing,  192. 
For  citation,  194. 
Vesting  administration,  194. 
Creditor,     application     for     letters, 

191. 

Citation,  192. 
Order  for  citation,  192. 
De   bonis   non,   application   for  ad- 
ministration, 184. 
Citation  for  administration,  184. 
Letters  of  administration,  185. 
Order  for  citation  to  issue,  184. 
Will  annexed,    application    for 

administration,  186. 
Citation  for  administration, 

187. 
Letters   of    administration, 

185,  188. 
Order  for  citation  to  issue, 

187. 
Deed,    bond   for   title   of   intestate, 

205. 

Private  sale,  398. 
Public  sale,  395,  396. 
Returns,   deed   made  in  pursu- 
ance of  order,  206. 
Discharge,  citation,  266. 
Order  of  citation,  265. 

Dismission,  266,  269. 
Petition  for,  265. 
Dismission,  citation,  793. 
Letters,  266,  793. 
Order,  266,  269. 

For  citation,  793. 
Petition,  792. 
Distribution  of  estates,   rules,   231. 


INDEX 


863 


[REFERENCES  ARE  TO  PAGES.] 


ADMINISTRATORS  AND  EXECU- 
TORS— Cont'd. 
Division  in  kind, 

Appraisers,  appointment,  242. 
Oath,   242. 
Return,  243. 
Citation,  241. 
Final   order,    243. 
Guardian  ad  litem,  acceptance, 

242. 

Appointment,  241. 
Petition,  240. 
Dower,  administratrix  applying  for, 

432. 

Election  of  widow,  240. 
Extra  compensation,  order  allowing, 

252. 

Petition    for    allowance,    251. 
Final  return,  253,  254. 
Final    settlement,    final   receipt    of 

distributee,   263. 
Order  approving,  262. 

Order   to    show    cause    for 

disobeying,  263. 
Petition  to   cite   administrator, 

261. 

Rule  nisi,  262. 
Foreign,  270. 
Garnishment,  153. 

Heirs,  agreement  for  selection,  198. 
Illegality  proceedings,  filing  affida- 
vit, 141. 
Insolvent     papers,    sale,     216,     217. 

See  Sales,  post. 

Inventory  and  appraisement,  certifi- 
cate of  appraisers,   247. 
Oath    of    administrator,  •  248. 

Appraisers,  246. 
Order     appointing    appraisers, 

245. 

Return  of  appraisers,  246. 
Warrant,   245. 
Judgment,    compelling   executor   to 

give  bond,  792. 
On    caveat    to    application    for 

administration,  199. 
Lands,  sale,    219-225,     227-230.     See 

Sales,   post. 
Letters,  de  bonis  non,  185. 

De  bonis  non,  with  will  annex- 
ed, 185,  188. 
Dismission,  266,  793. 
Next  of  kin,  188-190. 
Permanent,  190,  200. 

Agreement  of  heirs  for  se- 
lection of  administrator, 
198. 


ADMINISTRATORS  AND  EXECU- 
TORS— Con  t'd. 
Letters — Cont'd. 

Permanent — Cont'd. 
Application,  197. 
Bond  of  administrator,  200. 
Caveat  to  application,  199. 
Citation,  190,  198. 
Judgment  on  caveat,  199. 
Notice       to     debtors     and 

creditors,  202. 
Oath  of  administrator,  200. 
Order  for  citation,  198. 
Order  for  letters  to  issue, 

190. 

Temporary,  180,  182. 
Testamentary,  785,  788. 
Next  of  kin,  selection  by,  188-190. 
Notes,  doubtful,  sale,  217. 

Signed  by  mark  and  not  attest- 
ed, aflidavit,  244. 
Receipt,  245. 

Notice,  debtors  and  creditors,  202. 
Sale  of  perishable  property,  214. 
Title  under  bond,  proceeding  to 

require  making,  204. 
Oath  of  executor,  785. 

Permanent  administrator,  200. 
Temporary   administrator,    181. 
Payment  of  debts,  244,  245. 
Permanent  administration,  190,  197- 

202. 

Pleas,  see  Action,  ante. 
Removal,    application    by    next    of 

kin,  259. 

Failure  to  give  bond,  267,  268. 
Order  to  revoke  letters,  261. 
Rule  nisi,  260. 

Answer  to,  260. 
Order  to   discharge,   261. 
Resignation,  bond  of  successor,  270. 
Citation,  269. 
Order  for  letters  of  dismission, 

269. 

Petition,  268. 
Sales,  claim  of  title,   132. 

Insolvent      papers,      advertise- 
ment, 217. 
Aflidavit  of    administrator, 

217. 

Application  to  sell,  216. 
Order  of  court,  217. 
Return,  217. 
Lands,  account,   230. 
Adversely  held,  228. 
Advertisement,  221,  225. 
Appeal     from     order,     223, 
224. 


864 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


ADMINISTRATOKS  AND  EXECU- 
TORS— Cont'd. 
Sales — Cont'd. 

Lands — Cont'd. 

Application  to  sell,  219. 

Caveat  to  application,  221. 

Citation,   220. 

Claims,  228,  229. 

Deed,  229. 

Divided    by    county    lines, 

227. 

Order  for  citation,  219. 
Order    granting    leave    to 

sell,   220. 
Order     overruling     caveat, 

222. 
Perishable  property,  application 

to  sell,  213,  214. 
Notice,  214. 
Order    granting    leave    to 

sell,   213. 
Temporary      administrator 

selling,  214. 
Personal   property,    account   of 

sale,  218,  230. 
Application  to  sell,  215. 
Bill  of  sale,  216. 
Notice,  215. 
Wild  land,  application  to  sell, 

225 

Citation,  226. 
Deeds,  399. 

Order  for  citation,  226. 
Order  of  court,  227. 
Scire  facias,  order  making  executor 

party  defendant,  748. 
Suits,  see  Action,  ante. 
Superior  court  clerk,  application  for 

appointment,  195. 
Citation,  196. 
Order  for  citation,  195. 
Order    vesting    administration, 

196. 

Temporary  administration,  applica- 
tion for  letters,  180. 
Bond  for  administrator,  182. 
Letters,  182. 

Oath  of  administrator,  181. 
Order  of  appointment,   181. 
Pending     appeal     on    pro- 
pounded will.  183. 
Title  to  heirs,  deed,  239. 

Petition  to  compel  making,  238. 
Rule  absolute,  239. 
Rule  nisi,  238. 

Wild     lands,     sale,     225-227.       See 
Sales,  ante. 


ADMINISTRATORS  AND  EXECU- 
TORS— Cont'd. 

Year's  support,  acknowledgment  of 
service  of  notice,  232. 

Citation,   235. 

Oath  of  appraisers,  234. 

Order  allowing  return,  235. 

Order     appointing    appraisers, 
233. 

Order  for  citation,  235. 

Petition  for  appointment  of  ap- 
praisers, 232. 

Return  of  appraisers,  234. 

Rule  nisi  where  service  not  ac- 
knowledged,  233. 

ADOPTION. 

Child,    671-673.      See    Parent    and 
Chjld. 

,  ADULTERY. 

Witnesses,  competency,  61. 
ADVERTISEMENT. 
Administrator,  sale  by,  217,  221,  225. 
Attachment,  levy  of,  297. 
Estrays,  451. 

Sale,  452. 
Execution  levy,  165. 

Sale,  164,  754. 
Guardianship    funds,   reinvestment, 

493. 

Mortgage,  under  power  in,   645. 
Tax   sales,   760. 

AFFIDAVITS. 

See  Counter  Affidavits. 
Account,  actions  on,  97,  98,  110. 

Proof    of,    173. 
Accusation  in  city  or  county  court, 

828. 

Annual  return  of  administrator  re- 
moved from  state,  250. 
Attachment,  283,  284,  292. 
Bail,    actions    for    personalty,   307, 

310. 

Trover,  766. 

Banks,  proposed  corporators,  311. 
Bastard,  service  of  notice  of  legiti- 
mation proceedings,  670. 
Warrant,  830. 
Certiorari,   337,   338,   340. 
Chattel  mortgage,  creditor  contest- 
ing, 644. 
Foreclosure,  593,  594. 

Pauper  affidavit,  643. 
Claims  of  title,  127,  355. 
Constable,  rule  against,  372. 


INDEX 


865 


[REFERENCES  ABB  TO  PAGES.] 


AFFIDAVITS— ConZU 
Criminal  warrant,  800. 
Decedent's  estate,  account  against, 

244. 

Dispossessory  warrant,  425. 
Distress  warrant,  428. 
Estrays,  owner,  453. 

Taker-up,  451. 

Forcible  entry  and  detainer,  472. 
Garnishment,    Code    sections,    144, 

147. 

Entry  upon,  477. 
Forms,  154,  155,  475. 
Service  of  notice  of  traverse  of 

answer,   482. 

Good  behavior,  warrant  for,  803. 
Grand  juror,  defaulting,  587. 
Habeas  corpus,  criminal  case,  840, 

841. 

Petitioner,  504. 
Return  of  custodian  of  person 

detained,  507. 

Seizure  of  person  detained,  505. 
Homestead,  levy  and  sale,  517. 
Notice  of  application,  512,  513. 
Petition  for,  510,  519. 
Illegality:   See  Illegalities. 
Injunction,   use     as    evidence,  271, 

545. 

Verification  of  petition,  544. 
Insane  person,  commitment,  564. 
Guardianship   proceedings,   552, 

557. 

Intruders,  removal,  577. 
Jurisdiction,  plea  to,  583. 
Liens,     foreclosure,     608,    610,    611, 

613,  614,  616,  617. 

Lost     papers,     establishment     pro- 
ceedings, 625. 

Mandamus  proceedings,  628,  629. 
Money  rule,  service,   740. 
Mortgages,  foreclosure,  640,  647. 
New   trial,    newly   discovered    evi- 
dence, 658. 

Non  est  factum,  plea  of,  713. 
Notice  in  processioning  proceeding, 

service,  707. 

To  produce  papers,  664,  665. 
Nuncupative    wills,    witnesses,    787. 
Ordinary  form,  271. 
Peace  warrant,  805. 
Perishable  property,  petition  to  sell, 

745. 

Possessory  warrant,  675. 
Requisition  for  extradition  of  fugi- 
tives from  justice,  837,  838. 


AFFIDAVITS— Con  t'd. 

Search  warrant,  807. 

Trust     company,      subscribers     to 

stock,  320. 

Trustee,  sale  of  property,  774. 
Wills,  subscribing  witnesses,  780. 

AFFINITY. 

Disqualification  of  jurors,  16. 

AFFIRMATION. 
Witnesses,  63. 

AGE. 

Jurors,  disqualification,  16. 

AGENTS. 

Garnishment,  making  affidavit  and 
bond,    144,   147. 

Illegality    proceedings,     filing    affi- 
davit, 141. 

Power  of  attorney,  702. 
To  execute  deed,  391. 

ALIMONY. 

See  Divorce  and  Alimony. 

ALTERNATIVE  VERDICT. 
Trover,  judgment,   769. 

AMENDMENTS. 

Claim  cases,   136. 
Continuance  because  of,  19. 
Illegality  proceedings,  affidavit,  141. 
Justice  court,  on  appeal,  124. 
New  trial,  motion  for,  653. 

AMOUNT  IN  CONTROVERSY. 
Justice  court,     jurisdiction,  87,  88, 
117,  118,  124. 

ANIMALS. 

Estrays.     See  Estrays. 
Liens   of  owners     of    boars,   bulls, 
jacks,  and  stallions,  612-614. 

ANSWER. 

Administrator,  rule  nisi  in  proceed- 
ings  to  remove,   260. 
Certiorari,    340-342. 
Divorce  proceeding,  532. 
Equitable  petition,  449. 
Garnishee,  144-148,  151,  152,  158-160, 

478. 

Traverse,  149,  150,  160,  481,  482. 
Habeas  corpus,  criminal  case,  841. 
Mandamus  proceedings,  629. 


866 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


APPEAL. 

Bond,  272,  273. 

Continuance  on,  21. 

In  forma  pauperis,  274. 

Justice  court:  See  Justices  and 
Justice  Courts. 

Propounded  will,  temporary  admin- 
istration pending,  183. 

APPEARANCE. 

Garnishee,  time,  144,  146,  147. 

APPRAISAL. 

Decedent's  estate,  242,  243,  245-248. 

Estrays,  450. 

Homestead,   514,   515. 

Year's  support,  232-234. 

APPROVAL. 

New  trial,  motion  for,  656. 

ARBITRAMENT   AND   AWARD. 
Action  on  award,  petition,  280. 
Agreement  to  submit,  275,  278. 
Award  of  arbitrators,   277. 
Choice  of  third  arbitrator,  276. 
Exceptions  to  award,  279. 
Hearing,  order  appointing  time  and 

place  of,  276. 

Judgment  of  court,  278,  279. 
Notice    by   arbitrators    to   parties, 

277. 

Oaths  of  arbitrators,  276. 
Pendency  of    suit,     agreement  for 

submission,  278. 

Petition  in  action  on  award,  280. 
Submission  agreement,   275. 
Suit  pending,   278. 

ARRAIGNMENT. 

Form,   824. 

Waiver,  and  plea,  824. 

ARRAY. 

Challenge  to  jurors,  588,  825. 

ARREST. 

Bench  warrant,  827,  828. 

Interrogatories,   refusal   of  witness 

to  appear,  576. 
Warrant  for  good  behavior,  entry, 

804. 
Witness,  freedom  from,  60. 

ASSIGNMENT. 
Articles  of,  281. 
Bonds  for  title,  333. 
Claims,    to    defeat    exemption    of 
wages,  152,  153. 


ASSIGNMENT— Cont'd. 
Commencement    of    declaration  or 

petition,     suit     by     assignee     of 

chose  in  action,  386. 
Landlord's  lien,  600,  602. 
Lease,  282. 
Mortgages,  642. 

ATTACHMENT. 

Advertisement    of    levying    officer, 

297. 

Affidavit,  283,  284,  286,  292. 
Attorney  at  law,  contempt,  301. 

Making     affidavit     and     giving 

bond,  284. 

Bond,  283,  284,  286,  296. 
Constables,  contempt,  373. 
Counsel  fees  and  alimony,  non-pay- 
ment in  divorce  proceedings,  527, 
540. 

Declaration,  287,  295. 
Fraudulent  debtor,   affidavit,  292. 

Order  of  court,  293. 

Petition,  292. 

Garnishment  in  aid  of,  480-482. 
Judgment,  290,  294. 
Justice  court,  appeal,  124. 
Levy,   285. 

Notice  to  defendant,  289,  295. 
Purchase  money,  affidavit,  286. 

Bond,  286. 

Declaration,  287. 

Deed     where     bond     for    title 
given,  291. 

Judgment,  290. 

Notice  to  defendant,  288,  289. 

Return  of  officer,  289. 

Writ,  form,  287. 
Return,  287. 
Removal,  order  of  court,  294. 

Petition  for,  293. 
Replevy  bond,  296. 
Return  of  officer,  285,  287,  289. 
Rule  against  officers,  742. 
Traverse,  297. 
Witnesses,   compelling    attendance, 

59,  74. 
Writ,  form,  285. 

Levy,  285. 

Return,  285. 

ATTESTATION. 

Deeds,  388. 

Wills,  775,  777,  779. 

ATTORNEY  AND  CLIENT. 
Absence    of    counsel,    continuance 
for,  19,  20. 


INDEX 


867 


[REFERENCES  ARE  TO  PAGES.] 


ATTORNEY  AND  CLIENT— Cont'd. 
Attachment,  affidavit  and  bond,  284. 
Contempt,  attachment  for,  301. 
Continuance,    absence    of    counsel, 

19,   20. 

Agreement  of  counsel,  31. 
Illness  of  counsel,  affidavit,  375. 
Fees,  complaint  on  note  providing 

for,  710. 

Divorce    proceeding:     See    Di- 
vorce and  Alimony. 
Garnishment,  affidavit  and  bond  by 

attorney,  144,  147. 
Illness  of  counsel,  continuance  for, 

20,  25. 

Judge  preparing  contract,  disqualifi- 
cation,  6. 

Related  to  counsel,  disqualifica- 
tion, 4,  9,  10. 

Judgment  against  attorney  of  non- 
resident plaintiff,  582. 
Justice  court,  entry  of  appeal,  120, 

124. 

Manifold   copy  of  notice  for  attor- 
ney's fees  on  note,  178,  712. 
New  trial,  agreement  as  to  brief  of 

evidence,  658. 
Note  providing  for  attorney's  fees, 

175,  178,  710-712. 

Notice  to  defendant  to  recover  at- 
torney's fees  on  note,  175,  178, 
712. 

Privileged  communications,  42,  61. 
Rule  against,  attachment  for  con- 
tempt, 301. 
Petition,  298. 
Rule  absolute,  300. 
Rule  nisi,  299. 

ATTORNEY  IN  FACT. 
Deeds,  execution,  391. 
Illegality    proceedings,    filing    affi- 
davit, 141. 
Power  of  attorney,  702. 

AUDITORS. 

Application  for  appointment,  301. 

Exceptions  to  report,  305. 

Judgment  of  court,  306.     . 

Notice  given  by,  303. 

Oath,   303. 

Order  appointing,  302. 

To  show  cause,  302. 
Report,  304,  305. 

AUTRE  FOIS  ACQUIT. 
Plea,  821. 


AUTRE  FOIS  CONVICT. 

Plea,  822. 
AWARD. 
See  Arbitrament  and  Award. 

BAIL     IN     ACTIONS     FOR     PER- 
SONALTY. 

Affidavit,  307. 
Bond,  308. 
Petition,  306. 

Affidavit,  310. 

Defendant  confined  under  bail 

process,  309. 

Order  for  rule  to  show  cause, 
310. 

BAIL  TROVEE. 

Affidavit,  766. 
Bond,  768. 

BAILIFFS. 

Sheriff's  certificate  as  to  services, 
753. 

BANKS. 

Charter,  affidavit  of  proposed  cor- 
porators, 311. 

Application  for,  311. 
Certificate  of  incorporation,  313. 
Ordinary's  certificate,  313. 
Publication  of  declaration   and 

affidavit,   313. 

Examiner's  report,  321-327. 
Statement  of  condition  of,  314-317. 
Trust  companies,   affidavit  of  sub- 
scribers to  stock,  320. 
Application  for  charter,  318. 
Notice  of  intention  to  organize, 
318. 

BASTARDS  AND  BASTARDY. 

Appearance  of  putative  father,  bond 

for,  832. 

Judgment  requiring  bond,  832. 
Legitimation  of  bastard,  affidavit  as 

to  service  of  notice,  670. 
Notice  to  mother,  670. 
Order  of  court,  671. 
Petition,  670. 
Maintenance  and   education,   bond, 

831. 
Judgment  requiring  bond,  831. 

Warrant,  affidavit,  830. 
Form,  830. 


868 


INDEX 


[BEFERENCES  AEB  TO  PAGES.] 


BENCH  WARRANT. 
Bond,  827. 

Entry  of  arrest,   828. 
Form,  827. 
BEST  EVIDENCE. 
Necessity  of  producing,  35. 
BILLS  AND  NOTES. 
See  Promissory  Notes  and  Bills  of 
Exchange. 

BILL  OF  EXCEPTIONS. 
See  Practice  in  Supreme  Court. 
BILLS  OF  EXCHANGE. 
See  Promissory  Notes  and  Bills  of 
Exchange. 

BILLS     OF     SALE     OF    PERSON- 
ALTY. 

Administrator,  216. 

Bond  to  reconvey  personalty,  329. 

Debt,  bill  of  sale  to  secure,  328. 

Form,  328. 

Note  for  purchase  money  with  title 

reserved,  330. 
Sheriff,  755. 

BIRDS. 

Laws  relating  to,  842-850. 

BLACKSMITHS. 

Books  of  account  as  evidence,   37- 
40. 

BOARS. 

Liens  of  owners,  612-614. 

BONDS. 

See     Forthcoming     Bonds;     In 

Forma     Pauperis ;     Principal 

and  Surety. 

Administrators,  additional  security, 
210-212. 
Approval,  208. 

Justification  of  obligors,  208. 
New  security,  210. 
Order      on        application      to 

strengthen,  209. 
Permanent,  200. 
Refunding  bond,  264. 
Relief  of  security,  application, 

209. 
Removal    for    failure    to    give, 

267,  268. 
Strengthening,   209-212. 


BONDS Cont'd. 

Administrators — Cont'd. 

Successor  of  administrator  re- 
signing, 270. 

Temporary,  182. 
Appeal,  272,  273. 

Justice  court,  118,  120,  121,  125. 
Attachment,  283,  284,  286,  296. 
Bail,  actions  for  personalty,  308. 

Trover,  768. 

Bastards,    appearance    of    putative 
father  of,   832. 

Maintenance      and      education, 

831. 

Bench  warrant,  827. 
Bridge   contractors,   334. 
Certiorari,  336. 

Chattel  mortgage,  creditor  contest- 
ing, 645. 

Claims  of  title,  127-129,  356. 
Clerk  of  court,  361. 
Constables,  82,  84,  367. 
Dispossessory  warrant,  426. 
Distress  warrant,  430. 
Estrays,  owner  of,  453. 
Execution,  stay,  466. 
Garnishment,    Code    sections,    144, 
147. 

Dissolution,   148,   149,   157,   479, 
481. 

Entry  upon,  477. 

Forms,  154,  155,  476. 
Guardian,  natural,  484. 

Permanent,  490. 

Relief  of  sureties,  491,  492. 

Temporary,  489. 
Homestead,  levy  and  sale,  518. 
Illegality  proceedings,  140. 
Injunction,   546. 

Substitution  for,  548. 
Peace  warrant,  806. 
Possessory  warrant,  judgment,  677. 

Property   taken   by    defendant, 
678. 

Property  turned  over  to  plain- 
tiff,  677. 
Reconveyance  of  land,  408,  414,  419. 

Personalty,  329. 

Replevy,  chattel  mortgage  foreclos- 
ure, 595,  643. 

Execution,  459. 

Lien  foreclosure,  618. 
Supersedeas,  698-700. 
Title,  for:    See  Bonds  for  Title. 
Trustee,  772. 
Warrant  for  good  behavior,  804. 


INDEX 


869 


[REFERENCES  ARE  TO  PAGES.] 


BONDS  FOR  TITLE. 

Administrator,  requiring  making  of 

title,  202-207. 
Assignment,  333. 
Attachment,  deed,  291. 
Forms,  331,  332. 
Purchase  money  note  under,  716. 

BOOKS. 

Account,  evidence,  37-40: 
Compelling  production  in  court,  45- 

58. 
Ledgers,  admissibility  in  evidence, 

40. 

Refreshing  memory  from,  40,  41. 
Transcript  as  evidence,  56. 

BREACH  OF  MARRIAGE  PROM- 
ISE. 

Witnesses,  competency,  61. 

BRIDGES. 

Contractor's  bond,  334. 

BRIEF  OF  EVIDENCE. 

New  trial,  motion  for,  656-658. 

BULLS. 

Liens  of  owners,  612-614. 

BURDEN  OF  PROOF. 

Changing,  35. 

Claim  cases,  130,  136. 

Illegality  proceedings,  141. 

Party  having,  in  general,  35. 

BY-LAWS. 

Corporations,  348-354. 

CALENDAR. 

Stafford's  office  calendar,  admissi- 
bility in  evidence,  36. 

Stern's  United  States  calendar,  ad- 
missibility in  evidence,  36. 

CAPTION. 

Interrogatories,  agreement  to  take, 
69. 

CAUSE   OF   ACTION. 

What  is,   93,   94. 
CAVEATS. 

Administrators,  annual  return,  250. 
Application  for  permanent  let- 
ters, 199. 

To  sell  lands,  221.  - 
Dower,    return    of    commissioners, 

437. 
Wills,  probate  proceedings,  784. 


CERTIFICATES. 

Banks,  incorporation  of,  313. 

Certiorari,  337. 

Clerk  of  court,  extradition  proceed- 
ings, 837,  838. 

Interrogatories,  transmission,  573. 

Lost  papers,  copy  established,  626. 

Marriage,  522. 

Notary  public,  moral  character,  660. 
Official  character,  661. 

Ordinaries,  to  copies,  665. 
Transcript  of  record,  666. 

Protest,  722. 

Sheriff,  bailiff's  services,  753. 

Surveyor,     processioning     proceed- 
ings, 708. 

CERTIORARI. 

Affidavit,  336. 

Answer  to  writ,  340. 

Bond,  336. 

Certificate,  337. 

Costs,  judgment  for,  343. 

Exceptions  to  answer  to  writ,. 341. 

Notice  of,  342. 

In  forma  pauperis,  affidavit,  338. 
Judgment  of  court,  343. 
Justice  court,  122. 
Notice,  affidavit  as  to  service,  340. 

Exceptions   to  answer  to  writ, 
342. 

Sanction.  339. 
Petition.  335. 

Possessory  warrant,  notice,  679. 
Rules,  684,  685. 
Sanction  of  writ,  338,  S39. 
Service  of  writ,  339. 
Traverse  to  answer,  342. 
Writ,  form  of,  338. 

CHALLENGES. 

Jury,  array,  588,  825. 

CHARACTER. 
Evidence,  relevancy,  34. 
Notary  public,   certificate  of  moral 
character,   660. 

CHARTERS. 

Banks,  311,  313.     See  Banks. 
Superior  court  charters,  agreement, 
347. 

By-laws,   348-354. 

Judgment  granting,  356. 

Petition  for,  344,  345. 

Preferred    stock,   347. 

Stock  subscription,  347.     ' 


870 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


CHATTEL  MORTGAGES. 
See  Mortgages. 
CHOSES  IN  ACTION. 

Commencement    of    declaration    or 
petition,  suit  by  assignee,  386. 

CIRCUMSTANTIAL  EVIDENCE. 

Definition,  32. 

CITATION. 

Administration,  county  administra- 
tor, 194. 

Creditor's  application,  192. 
De  bonis  non,  184,  187. 
Discharge      of      administrator, 

265,  266. 

Dismission  of  executor,  793. 
Division  of  estate  in  kind,  241. 
Permanent,  190,  198. 
Resignation    of    administrator, 

269. 

Superior  court  clerk,  195,  196. 
Clerk  of  court,  705. 
Divorce  proceedings,  530. 
Guardianship  proceedings,  487. 

Dismission   from   guardianship, 

497,  498. 
Resignation  of  guardian,  496. 

Ordinary,  road  proceedings,  727. 
Wills,  probate,  783. 
Year's  support,  235. 

CITY  COURTS. 

Accusation  in,  828,  829. 
Demand  for  jury,  829. 
Execution,  456. 
Jury  summons,  753. 

CLAIMS. 

Decedent's  estate,  compromise,  236, 
237. 

CLAIM  OF  TITLE. 

Admission  of  possession,  137. 
Affidavit,  127,  355. 
Amendment,  136. 
Bond,  127-129,  356. 
Burden  of  proof,  130,  136. 
Compensation  for  keeping  property 

129. 

Costs,  136. 

Crops  purchased  from  landlord,  137. 
Damages,  130,  131,  136. 
Executor's  sale,  132. 
Forthcoming    bond,    128,    129,    133, 

134,  357,  358. 
Garnished   property,   146,   149,   150, 

480. 


CLAIM  OF  TITLE— Cont'd. 
Grounds  of  attack  on  execution,  140. 
Homestead,   139. 
In  forma  pauperis,  128,  133. 

Affidavit,  357. 
Issue  joined,  135,  359. 

Tendered,  358. 
Joint  owner,  128. 
Judgment,  135,  136,  359. 

Damages  found,  360. 
Jurisdiction,  objections  to,  137. 
Jury  trial,  130. 
Justice  court,  132,  133,  597. 
Non-appearance  of  claimant,  138. 
Oath,  jurors,  130. 

Necessity,  127. 
Opening  and  concluding  argument, 

139. 

Ordinary,  court  of,  131. 
Partner,  128. 
Payment,  139. 
Prima   facie   case,    138. 
Return,  129. 
Sale,  failure  to  give  bond,   129. 

Postponement,  128. 
Second   claim,   131. 
Sheriff's  entry,  755. 
Tender  of  issue,  135. 
Trial,  133-135. 

By  jury,  130. 
Verdict,  135,  359. 
Withdrawal,  130. 

Original  fi.  fa.,  131. 

CLERKS   OF   COURT. 

Administrator,     clerk    of    superior 

court  acting  as,  195,  196. 
Bond,  361. 

Certificate,  authority  of  officer,  362. 

Bill  of  exceptions,  897,  698. 

Exemplification  of  record,  363. 

Extradition     proceedings,     837, 
838. 

Notary's  authority,  389,  390. 

Transcript  of  record,  698. 
Deputy,  bond,  361. 
Fees,   379. 

Indorsement  on  execution,  455. 
Interrogatories,  receipt,  573. 
Judges,  appointed  by,  when,  8. 
Oath,  360. 
Scire  facias  to  make  parties,  362. 

CODICILS. 

Form,  779. 

COLLATERAL  NOTE. 

Form*  718. 


INDEX 


871 


[REFERENCES  ABB  TO  PAGES.] 


COMMENCEMENT. 
Declaration  or  petition,  385-387. 

COMMISSION. 

Depositions  without  commission, 
70-74,  574,  575.  See  Depositions 
without  Commission. 

Interrogatories,  570-572.  See  Inter- 
rogatories. 

Lunacy  proceedings,  554-556,  559. 

Notary    public,  661. 

COMMISSIONS. 

Administrators,  forfeiture,  252,  253. 

COMMISSIONERS. 

Court,     return     of     interrogatories, 

575. 

Dower,  assignment,  433-435. 
Lunacy  proceedings,   554-556. 
Police,  disqualification,  5. 
Roads,  complaint  against,  738. 

Judgment  against,  739. 

Judgment    of,    against    default- 
ers, 731. 

Summons  to,  736,  739. 

COMMITMENT. 
Criminal  warrant,  801. 
Insane  persons,  564-566. 
Possessory  warrant,  defendant,  676. 

COMMON  LAW. 

Continuances,  number,  18. 
Ejectment,  petition,  439. 
Habeas  corpus,  petition,  503. 

COMMUNICATIONS. 
Privileged,  42,  61. 

COMPENSATION  AND  FEES. 
See  Costs  and  Fees.' 

Administrators,  extra  compensa- 
tion, 251,  252. 

Claimant  of  property,  compensation 
for  keeping  same,  129. 

COMPETENT   EVIDENCE. 
Definition,  32. 
COMPROMISE. 

Decedent's  estate,  claims  against, 
236,  237. 

CONDITIONAL  SALES. 

Note,  720. 
CONDUCT. 
Evidence,  34. 


CONSENT. 

Beneficiaries,   appointment  of  trus- 
tee, 771. 
Trial,  continuance,  31. 

CONSIDERATION. 

Illegality,  plea  of,  366. 
Justice  court,  plea  of  failure  of  con- 
sideration, 102,  104. 
Partial  failure,  plea  of,  104,  365. 
Total  failure,  plea  of,  104,  364,  365. 

CONSTABLES. 

Advertising  levy,  165. 

Sales,  164. 
Appointment,   80-82. 
Bonds,  82,  84,  367. 
Contempt,  attachment  for,  373. 
Criminal  warrant,  return,  801. 
Duties,  84. 
Election,  79. 
Entry  before  levy  on  land,  369. 

Nulla  bona,  369. 
Fees,  384. 
Levy  of  execution,  165. 

Land,  369. 

Notice,  370. 

Shares  of  stock,  370. 
Nulla  bona,  entry  of,  369. 
Number    79. 
Oath,  81,  82,  84,  368. 
Removal,  79. 

Rule   against,   attachment   for   con- 
tempt, 373. 

Code  sections,  84. 

Demand,  372. 

Affidavit  of  service,  372. 

Petition,  371. 

Rule  absolute,  373. 

Rule  nisi,  372. 
Sales,  advertising,  164. 

Corporate  stock  levied  on,  how, 
164. 

Forthcoming  bond,  165. 

Land  levied  on,  when,  164. 

Notice,   370. 

Time  and  place,  164. 
Service  by,  369. 
Term  of  office,  79. 

Acting  after.  87. 
Vacancy  in  office,  79. 

CONTEMPT. 

Attorney-at-law,  attachment,  301. 

Constables,    attachment,    373. 

Counsel  fees  and  alimony,  non-pay- 
ment in  divorce  proceeding,  527, 
540. 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


CONTEMPT— Cont'd. 
Interrogatories,   refusal   of  witness 
to  appear,  576. 

CONTINUANCE. 

Absence  of  counsel,  19,  20,  27. 

Party,  19,  20,  27. 

Witnesses,  19,  20,  25,  44,  374. 
Affidavits  for,  374,  375. 
Agreement  of  counsel,  31. 
Amendments,  effect,  19. 
Appeal,  on,  21. 

Claim  cases  in  justice  court,  133. 
Common  law,  number,  18. 
Consent  to  trial,  31. 
Counsel,  absence,  19,  20,  27. 

Agreement,  31. 

Illness,  20,  25. 

Affidavit,  375. 

Counter-showing  to  motions  for,  21. 
Depositions,  proceedings  for  taking, 

73. 

Diligence,  necessity,  21,  22. 
Discretion  of  court,  21-23. 
Docket  entry,  21. 

General  Assembly,  absence  of  coun- 
sel, party,  or  witness  in  attend- 
ance upon,  19. 
Illness  of  counsel,   20    25. 

Affidavit,  375. 
Illness  of  party, -20,  23. 

Affidavit,    375. 
Interrogatories,        non-return        as 

ground,  21. 
Joint  parties,  30. 
Justice  courts,  22. 

Claim  cases,  133. 
Motion,  service  of  rule  nisi,  30. 
Number  at  common  law,  18. 
Party,  absence,  19,' 20,  27. 

Illness,   20,   23. 

Affidavit,  375. 

Production  of  papers,  pending,  52. 
Public  announcement,  21. 
Rules,  22. 

Supreme    Court,    absence    of    coun- 
sel, party  or  witness,  19. 

Cases  sent  back  from,  20. 
Surprise,   28,   32. 
Term   of  court,  beyond,  21. 
Trial  term,  case  not  reached  at,  20. 
Witnesses    absence,   19,   20,   25,   44, 
374. 

Pay  for  attendance  after,  21. 

CONTRACTS. 

Action  for  breach  in  justice  court, 
589. 


CONTRACTS—  Cont'd. 
Bridges,  bond  of  contractor,  334. 
Fertilizers,  plea  of  illegality,  471. 
General  form,  377. 
Judgment  on,  581. 
Landlord  and  tenant,  between,  603. 
Creation  of  landlord's  lien,  599. 
Sale,  743. 
Short   form,   378. 

CONTRACTORS. 

Bond  of  bridge  contractor,  334. 

Liens,  605,  606. 

Mechanic's     lien     on     real     estate, 

claim,  376. 
Petition  to  foreclose,  376. 

CONVICTS. 

Divorce,    conviction    of    felony    as 
ground,  523. 

COPIES. 

Accusation,  demand,  817. 

Response     of     solicitor-general, 

817. 

Evidence,  admissibility  in,   36. 
Lost    papers,     establishment:     See 

Lost  Papers. 
Ordinaries,  certificates,  665. 

CORONERS. 

Justices  of  the  peace,  acting  as,  78. 

CORPORATIONS. 

See  Banks. 

Charters,   344-355.     See  Charters. 
Commencement    of    declaration    or 

petition,  suit  against,  387. 
Garnishment,  145,  150,  153. 
Nul  tiel  corporation,  plea,  379. 
Service  of  process,  704. 
Stock,  levy  on,  370. 

COSTS  AND  FEES. 

Certiorari,  judgment  for,  343. 

Claim   cases,   136. 

Clerks  of  superior  court,  379. 

Commissioners    taking    depositions, 

74. 

Constables,  384. 
Execution  against  plaintiff,  465. 

Indorsement,  455,  456. 
Garnishment  proceedings,  151,  159. 
Judgment  for  costs,  385. 

Non-resident    plaintiff,    against 

attorney  of,  582. 
Jurors,  120. 
Justices  of  the  peace,  382. 

Appeal,  126. 


INDEX 


873 


[REFERENCES  ARE  TO  PAGES.] 


COSTS  AND  FEES—  Cont' d. 
Notaries    public,    ex-officio    justices 

of  the  peace,  382. 
Ordinaries,   667-669. 
Sheriff,  381. 
Witnesses,  59,  60,  62. 

After  continuance,  21. 

COUNSEL. 

See  Attorney  and  Client. 
COUNTER  AFFIDAVITS. 

Account,  action  on,  98,  111,  174,  589. 
Dispossessory  warrant,  426. 
Distress  warrant,  429. 
Estrays,  ownership,   454. 
Homestead,  levy  and  sale,  518. 
Intruders,   removal,   577. 

COUNTY  ADMINISTRATOR. 

Bond,  207. 

Order  appointing,  192. 

Vesting  administration  in,  193,  194. 

COUNTY  COMMISSIONERS. 

Subpoenas,  796. 
COUNTY  COURTS. 

Accusation  in,  828,  829. 
Demand  for  jury,  829. 
Execution,  457. 

COUNTY  TAXES. 

Order   levying,   757. 

COUPONS. 

Notes  with  coupons,  412-414,  714, 
715. 

COURTS. 

See  City  Courts;   Clerks  of  Court; 

County  Courts;  Court  of  Inquiry; 

Justices      and     Justice     Courts; 

Ordinaries;    Practice  in   Supreme 

Court;   Superior  Courts. 

COURT    COMMISSIONER. 

Interrogatories,  return,  575. 

COURT  OF  INQUIRY. 

Subpoenas,  form,  58. 

CREDITS. 

Entry  on  note,  719. 

CROPS. 

Contract     between     landlord     and 

cropper,  603. 
Lien    of    landlord    for    furnishing 

supplies,  598-602. 


CROSS-EXAMINATION. 
Witnesses,  63. 
CROSS-INTERROGATORIES. 

Commission  to  take  testimony,  65, 
67. 

CROSS-PETITION. 
Divorce  proceeding,  532. 

CRUEL  TREATMENT. 
Divorce,  grounds,  523. 

CUMULATIVE  EVIDENCE. 

Definition,    32. 

DAIRYMEN. 

Books   of  account  as  evidence,   37- 
40. 

DAMAGES. 

Claim  cases,  130,  131,  136. 
Garnishment,  wrongful,  152. 
Illegality  proceedings,  140. 
Justice  court,  frivolous  appeal,  126. 
Road,  establishment,  733-735. 

DATES. 

Stafford's    office    calendar,    admissi- 

bility  in  evidence,  36. 
Stern's  United  States  calendar,  ad- 

missibility  in  evidence,  36. 

DE  BONIS  NON. 

Administration:       See    Administra- 
tors and  Executors. 

DE  FACTO  OFFICERS. 
Evidence,  36. 

DEATH. 

Declarations  by  deceased  persons  as 
evidence,  37. 

DECEDENT'S  ESTATES. 

See  Administrators  and  Executors. 

DECLARATIONS. 

Evidence,  admissibility,   37. 

DECLARATIONS    OR   PETITIONS. 

Adoption  of  child,  671. 

Attachment,  287,  295. 

Award    of    arbitrators,    action    on, 

280. 

Bastard,   legitimation  of,   670. 
Certiorari,  335. 

Commencement,  administrator  with 
will  annexed  suing,  386. 


874 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


DECLARATIONS    OE    PETITIONS 

— Cont'd. 
Commencement — Cont'd. 

Assignee    of    chose    in    action 
suing,  386. 

Corporation,      domestic,      sued, 
387. 

Executor  suing,  386. 

Guardian  suing,  386. 

Infant    suing    by    next    friend, 
385. 

Partners   suing  partners,   385. 

Railroad  company  sued,  387. 

Receiver  suing,  387. 
Constable,  for  rule  against,  371. 
Corporate   charter,   for,    344,   345. 
Demurrers  to,  448,  449. 
Divorce,   524,   528. 
Ejectment,  439. 
Equity,   447-450. 
Habeas  corpus,  common  law,  503. 

Criminal  case,   839. 
Homestead,  application  for,  508. 
Injunction,   544. 
Lost     papers,     establishment,     422, 

621,    622,   625. 
Mandamus,    627. 

Mechanic's    lien,    foreclosure,    376. 
Mortgage   foreclosure,   635. 
Natural    guardian,    484. 
Ne  exeat,  divorce  and  alimony  pro- 
ceeding,  541. 

Notary  public,  appointment,  659. 
Perishable  property,  sale  of,  744. 
Processioning  proceedings,  706. 
Scire  facias  to  revive  dormant  judg- 
ment, 749. 
Trover,  766. 
Verification,  447. 

Wills,    compelling   production,    789, 
790. 

Probate,  780,  781. 

DECREES. 

See  Judgments  and  Decrees. 

DEEDS. 

Acknowledgment  of  execution,  389. 
Administrator,  land,  229. 

Under  bond   for  title   of  intes- 
tate, 205. 
Wild    land,   399. 
Attachment,    bond    for    title    given, 

291. 

Attestation  of  domestic  deed,  388. 
Bond  to  reconvey,  408,  414,  419. 
Certificate  of  clerk  to  notary's  au- 
thority, 389,  390. 
Signature  of  judge,  390. 


DEEDS — Cont'd. 

Executor,  private  sale,  398. 

Public  sale,  395,  396. 
Gift,   395. 
Guardian,   400. 
Loan  deed  with  power  of  sale,  405. 

Cancellation   clause,   411. 
Lost,  establishment,  622. 

Oath  to  copy,  422. 

Petition,   422. 

Rule  absolute,  423. 

Rule  nisi,  423. 

Notice  of  levy  by  sheriff,  402. 
Partition,    401. 

Power  of  attorney  to  execute,  391. 
Probate  of  witness,  391. 
Promissory  note,  loan  deed,  412. 
Quit  claim  deed,  394. 
Reconveyance,   bond,   408,   414,  419. 
Security  deed,  under  Code,  416. 

Warranty  deed  to  secure  loan, 

405,  411. 
Sheriff's  deed,  403. 

Tax  deed,  404. 
Shylock   form,   405. 
Tax  deeds,  404,  761. 
Trust,  401. 
Wards,  to,  501. 
Warranty  deed,  392,  393. 

To  secure  loan,  411. 
Wild   lands,   399. 

DEFAULT   JUDGMENT. 

Affidavit    on    application    to    open, 

424. 
Form  of  judgment  on  opening,  424. 

DEFAULTERS. 

Road,   729-737.     See   Roads. 

DEFINITIONS. 

Account,  108. 
Account  stated,  109. 
Circumstantial  evidence,  32. 
Competent  evidence,   32. 
Cumulative  evidence,  32. 
Direct  evidence,  32. 
Evidence,  32. 
Hearsay  evidence,  37. 
Indirect  evidence,  32. 
Preponderance  of  evidence,  33. 
Presumptive  evidence,   32. 
Primary   evidence,   35. 
Secondary  evidence,  35. 
Sufficient  evidence,  32. 


INDEX 


87! 


[REFERENCES  ARE  TO  PAGES.] 


DEGREES. 

Relationship,      disqualification      of 
judges,   1-4. 

Disqualification   of  jurors,   13. 

Marriage,  521. 
Secondary  evidence,  36. 

DELAY. 

Frivolous  appeal,  justice  court,  126. 
Illegality      proceedings,      damages, 
140. 

DELIVERY. 

Depositions,   71. 
Garnishee,  by,  151. 

DEMAND. 

Accusation,  for  copy  of,  817. 
Jury,   city   or   county   court,   829. 
Money  rule  against  officer,  740. 
Municipal    corporation,    on,    before 

suit,  650. 

Trial,  by  accused,  816. 
Witnesses,  for  list  of,  817. 

DEMURRERS. 

Equitable  petition,  448,  449. 
Indictment,  818. 

DEPOSITIONS  WITHOUT  COM- 
MISSION. 

See  Interrogatories. 

Acknowledgment  of  service  of  no- 
tice, 574. 

Adjournment  of  proceedings,  73. 

Attachments,  74. 

Compelling  appearance  of  witnesses, 
74. 

Contempt,  failure  of  witness  to  ap- 
pear, 71. 

Delivery,  71. 

Fees  of  commissioner,  74. 

Notice,  70-73,  574. 

Oath  of  witnesses,  70,  73. 

Officer  before  whom  taken,  70,  72. 

Order  of  examination,  73. 

Postponement   of   proceedings,   73. 

Powers  of  commissioner,  74. 

Return,  73.. 

Scope  of  examination,  73. 

Seal,   71. 

Signing,  70. 

Subpoena,   575. 

Duces  tecum,  71. 

Writing,  reducing  to,  70. 

DESERTION. 
Divorce,  grounds,  523. 


DIAGRAMS. 

Judges,   relationship,  3. 
Jurors,   relationship,   15. 

DILATORY  PLEAS. 
Justice  court,  102. 
DILIGENCE. 

Continuances,  affecting  right  to,  21, 
22. 

DIRECT  EVIDENCE. 

Definition,  32. 
DISCLAIMER. 

Ejectment  proceedings,  439. 

DISCRETION  OF  COURT. 

Continuance,  21-23. 

DISMISSAL. 

Appeal  from  justice  court,  120,  126. 
Garnishment,  482. 
Sheriff's  entry,  757. 

DISMISSION. 

Administrator,  266,  269. 
Executor,  792,  793. 
Guardian,  497-499. 

DISPOSSESSORY   WARRANT. 

Affidavit,  425. 

Bond,  426. 

Counter  affidavit,  426. 

Judgment,  427. 

Verdict,   427. 

Writ  of  possession,  427. 

DISQUALIFICATION. 

Constables,  81. 
Judges:     See  Judges. 
Jurors:     See  Jury  and  Jurors. 
Justices  of  the  peace,  76,  77. 

DISSOLUTION. 

Garnishment,  bond,  157,  479,  481. 

Code  sections,  146,  148-150. 

Notice,  157,  483. 
Injunction,   547,  548. 

DISTRESS  WARRANT. 

Affidavit,  428. 
Bond,  430. 

Counter  affidavit,   429. 
Levy,  429. 
Warrant,  429. 

DISTRIBUTION. 

Decedent's  estate:   See  Administra- 
tors and  Executors. 


876 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


DIVISION. 

Decedent's  estate,  240-243. 
Partition  deed,  401. 

DIVOECE  AND  ALIMONY. 
Answer  to  petition,  532. 
Attachment,  failure  to  pay  alimony, 

527,   540. 

Citation  by  clerk,  530. 
Contempt,  non-payment  of  alimony, 

527,   540,    541. 
Counsel  fees,  order  allowing,  526. 

Order  nisi,  538. 

Order  to  pay,  539. 

Petition,  524,  537. 
Cross-petition,  532. 
Cruel  treatment,  523. 
Decree  a  mensa,  535. 

Total  divorce,  534. 
Desertion,  523. 
Felony,  conviction  of,  523. 
First    verdict,    533. 
Force,  fraud,  etc.,  522. 
Form  of  grounds,  522-524. 
Habitual  intoxication,   524. 
Mental  incapacity,  522. 
Ne  exeat,  order,  542. 

Petition,  541. 

Writ,    542. 

Order,  allowing  alimony  and  coun- 
sel fees,  526. 

Nisi,    527,    538. 

To  perfect  service,  531. 
Petition,  524,  528. 

Alimony  where  no  suit  for  di- 
vorce pending,  537. 

Cross-petition,  532. 

Ne  exeat,  541. 

Rule  absolute  and  attachment, 

527. 

Pregnancy,  523. 
Process,  526. 

Publication,  service  by,  531. 
Removal   of   disabilities,   judgment, 
537. 

Notice  of  application,  536. 

Notice  to  be  published,  536. 

Petition,  535. 

Verdict,  537. 
Return  by  sheriff,  530. 
Rule  absolute,  528,  539,  541. 
Schedule  of  property,  530. 
Second  verdict,  533. 
Service,  order  to  perfect,  531. 

publication,  531. 
Verdict  a  mensa,  534. 

A  vinculo,  533. 


DOCKETS. 

Continuance,  entry,  21. 

Execution,  entry,  456. 

Justice   court,   evidence   on   appeal, 

126. 
Furnishing,  106. 

DOCUMENTARY   EVIDENCE. 

See  Evidence. 

DORMANT  JUDGMENT. 

Scire  facias  to  revive,  749,  750. 

DOWER. 

Admeasurement,    writ   of,    434. 
Application,   431. 

By   widow   who   is   administra- 
trix, 432. 
Copy  of  notice  to  non-resident  heirs, 

433. 

Election  of  widow,  240. 
Notice    of    intention    to    apply    for, 

431. 
To     non-resident     heirs,     copy, 

433. 

Oath  of  commissioners,  435. 
Order     appointing     commissioners, 

433. 

Return    of    commissioners,    435. 
Caveat  and  objections  to,  437. 
Order  making  return  judgment 

of  court,  436. 
Sheriff,  437. 

Writ  of  admeasurement,  434. 
Possession,    437. 

DRUNKARDS. 

Witnesses,   competency,    62. 

DRUNKENNESS. 
Divorce,  grounds,  524. 

EJECTMENT. 

Common  law  form  of  petition,  439. 
Complaint  for  land  and  mesne  prof- 
its,   438. 

Disclaimer  of  title,  439. 
Judgment  of  court,  443. 
Mesne  profits,  complaint  for,  438. 
Notice  to  appear,  442. 
Petition  in  action  of,  439. 
Under  Neel  Act,  445. 
Plea  of  defendant,  443. 
Process,  442. 
Return  by  sheriff,  444. 
Verdict  of  jury,  443. 
Writ  of  possession,  444. 


INDEX 


877 


[REFERENCES  ARE  TO  PAGES.] 


ELECTION. 

Dower,  widow,  240. 

Verdict  in  trover,  judgment,  769. 

ELECTIONS. 

Constables,  79. 

Justices  of  the  peace,  75,  76. 

EMPLOYEES. 

Contract  between  employer  and  em- 
ployee, 603. 

ENTEY. 

See  specific  heads. 

EQUITY. 

Answer  to  petition,  449. 
Demurrers  to  petition,  general,  449. 

General  and  special,  448. 

Special,  449. 

Injunction,   skeleton  petition,  447. 
Petition,  answer,  449. 

Answer,  verification,  450. 

Defense  to,  448. 

Demurrer  to,  448,  449. 

Skeleton  form,  447. 

Verification,,  447. 
Receiver,  skeleton  petition,  447. 
Skeleton  petition,  447. 
Verification  of  answer,  450. 

Petition,  447. 

ESCROW  DEED. 

Form,    743. 

Receipt  of  holder,  744. 

ESTOPPEL. 

Presumptions  of  law,  34. 

ESTRAYS. 

Advertisement  of,  451. 

Sale,    452. 
Affidavit  of  owner,  453. 

Counter    affidavit,    454. 

Taker-up,  451. 
Appraisement,  450. 
Bond  of  owner,  453. 
Description  and.  appraisement,  450. 
Notice  by  ordinary,  452. 
Order  of  sale,   452. 

EVIDENCE. 

See  Depositions  without  Com- 
mission; Interrogatories; 
Witnesses. 

Account  books,  37-40. 
Attorney    and    client,    communica- 
tions between,  42,  61. 
Best,  necessity  of  producing,  35. 


EVIDENCE— Con  t'd. 
Books,  account,  37-40. 

Compelling  production,  45-58. 

Refreshing    memory    from,    40, 
41. 

Transcript,  56. 
Burden  of  proof,  35. 
Character  of  parties,  34. 
Circumstantial  evidence,  definition, 

32. 

Competent  evidence,   definition,   32. 
Conduct  of  parties,  34. 
Copies,  admissibility,  36. 
Court  of  inquiry,  subpoena  in,  58. 
Cumulative  evidence,  definition,  32. 
Dates,  36. 

De  facto  officers,  36. 
Declarations,  deceased  persons,  37. 

Persons    in    possession,    37. 

Res  gestae,  37. 
Definitions,  32,  33,  35,  37. 
Depositions:     See  Depositions  with- 
out  Commission. 
Direct  evidence,  definition,  32. 
Estoppels,  34. 
Failure    to    produce,    presumption, 

35. 

Hearsay,  37. 
Identity,   proof   of,   37. 
Indirect  evidence,  definition,  32. 
Inferences,  34. 
Inscriptions    on    monuments,    etc., 

36. 

Interpreters,  evidence  through,  62. 
Interrogatories:      See     Interrogato- 
ries. 

Judicial   notice,   33. 
Justice  court,  subpoena  in,  58,  62. 
Ledgers,  40. 

Mental      conviction,     amount      re- 
quired, 33. 
Negative,    35. 
Notice  to  produce  papers,  form,  47- 

50,  53,  54. 
Object  of,  32.» 
Officer  de  facto,  36. 
Paper  in  court,  45,  53. 

Surreptitiously  secured,  46. 
Pedigree,  37. 
Positive,   35. 
Preponderance,  definition,   33. 

Determination,  33. 
Presumption,  failure  to  produce  evi- 
dence, 35. 

Law  and  fact,  34. 

Prima  facie,  34. 

Presumptive     evidence,     definition, 
33. 


878 


INDEX 


[EEFEBBNCES  ARE  TO  PAGES.] 


EVIDENCE— Cont'd. 

Primary  evidence,  35. 

Production    of  books   and    papers, 

compelling,  45-58. 
Records,  primary  evidence,  36. 
Refreshing    memory    from    books, 

40,   41. 

Relevancy,  34. 
Res  gestae,  37. 
Roster  of  Georgia  soldiers,  sailors, 

and  marines,  36. 
Rules,  same  in  all  courts  and  cases, 

33. 

Secondary  evidence,  35,  36,  56. 
Stafford's     office    calendar,  admissi- 

bility,  36. 
Stern's  United  States  calendar,  ad- 

missibility,  36. 

Sufficient  evidence,  definition,  32. 
Transcript  of  books,   56. 
Wills,  primary  evidence,  36. 
Witnesses:     See  Witnesses. 
Written,  best  evidence,  35. 
EXAMINATION. 

Witnesses,  63. 

Cross-examination,  63. 
Depositions,  73. 
Separate,  108. 

EXAMINERS. 
Banks,  report,  321. 
EXCEPTIONS,  BILL  OF. 
See   Practice   in   Supreme  Court. 
EXCHANGE,  BILLS  OF. 
See  Promissory  Notes  and  Bills  of 
Exchange. 

EXECUTION. 

City  court,  456. 

Claims     by      third      persons:     See 

Claim  of  Title. 

Clerk's   fees,    indorsement,    455. 
Control  by  surety  paying,  entry  by 

collecting  officer,  468. 
Order  of  court,  469. 
Surety  against  co-surety,  470. 
Surety  against  principal,  469. 
Cost     execution     against     plaintiff, 

465. 

County  court,  457. 
Entry  on  docket,  456. 

Nulla  bona,  465. 

Illegality,  affidavit  of,  140,  141,  143, 
461,  462. 


EXECUTION— Cont'd. 
Illegality — Cont'd. 

Amendment  of  affidavit,  141. 

Attorney  in  fact  filing  affidavit, 
141. 

Bond,  140. 

Burden  of  proof,  141. 

Chattel    mortgage     fi.  fa.,  596, 
642. 

Damages  for  delay,  140. 

Excessive  levy  as  ground,  142. 

Forthcoming     bond,     140,     142, 
464. 

Homestead,  142. 

Joining  issue,  463. 

Judgment,  141,  464. 

Justice  court,   140. 

Levy   to  precede,   140. 

Order     making     sheriff     party, 
462. 

Return,    140. 

Sale  of  property,  141. 

Second  affidavit,  143. 

Traverse,   463. 

Sheriff's  return,  462. 

Trial,   140,   141. 

Trustee  filing  affidavit,  141. 

Verdict  of  jury,  463. 
Indorsements,  costs  and  fees,  455. 
Justice  court,  459. 
Landlord's  lien,   foreclosure,   601. 
Levy,  164,  165,  460. 

On  land,  notice,  466. 

Tax  fi.  fa.,  458. 

Liens,  foreclosure,  608,  610-612,  614- 
616,  618. 

Judgment  setting  up,  607. 
Mortgage  foreclosure,  595,  637,  640. 
Notice  of  levy  on  land,  466. 
Nulla  bona  entry,  465. 
Perishable     property,     sale    of,    see 

Sale,  post. 
Principal     and     security,     against, 

460. 

Replevy  bond,   459. 
Sale  of  perishable  property,  adver- 
tisement, 468. 

Application,  467. 

Notice,    467. 

Order,    468. 

Sheriff's  fees,  indorsement,  455. 
Stay,  bond,  466. 
Superior  court,  454. 
Tax  fi.  fas.,  458,  760,  761. 
Witness'  fees,  indorsement,  456. 


INDEX 


879 


[REFERENCES  ARE  TO  PAGES.] 


EXECUTORS. 

See  Administrators  and  Executors. 
EXEMPLIFICATIONS. 
Records,     certificate     of     clerk     of 
court,   363. 

EXEMPTIONS. 

See  Homestead  and  Exemptions. 
Garnishment,  146,  152,  153. 

EXTRADITION     OF     FUGITIVES 

FROM  JUSTICE. 

Affidavit,    presence   of   fugitive     in 
State,  838. 

Prosecutor's  affidavit,  837. 
Requisition,     application     for,     835, 

836,  838. 
Certificate  of  clerk  to  copy  of 

bill  of  indictment,  838. 
Magistrate's  authority,  837. 
Rules,  833-835. 

FACT. 

Presumptions,   definition,  34. 

FAILURE    OF    CONSIDERATION. 

Justice    court,    pleas,    102,    104. 

Partial,  plea  of,  365. 

Total,  plea  of,  364,  365. 

FARM   RENT   NOTE. 

Form,  720. 

FARMERS. 

Books   of  account  as  evidence,  37- 

40. 
FEES. 

See  Costs  and  Fees. 
Counsel    fees,    divorce    proceeding: 

See  Divorce  and  Alimony. 

FELONY. 

Divorce,  conviction  as  ground,  523. 

FERTILIZERS. 

Illegality  of  contract,  plea,  471. 

FIERI  FACIAS. 

See  Execution. 

FILING. 
Interrogatories,  67. 

FISH. 

Laws  relating  to,  850-858. 

FORCE. 

Divorce,   grounds,   522. 


FORCIBLE      ENTRY      AND     DE- 
TAINER. 

Affidavit,    472. 

Judgment,  474. 

Jury,  oath,  473. 

Precept  for  summoning,  472. 
Summons,  472. 
Verdict,  474. 

Justice  court,  jurisdiction,  87. 

Precept  for  summoning  jury,  472. 

Return  of  sheriff,  475. 

Summons  to  defendant,  473. 

Verdict,  474. 

Writ  of  possession,  474. 

FORECLOSURE. 

Landlord's  lien,  600-602. 

Liens:  See  Liens. 

Mortgages,  equitable  foreclosure  on 

realty,  646-648. 
Personalty,  640-645. 
Realty,  635-637. 

FORFEITURES. 

Recognizances,   811-813. 

FORMER  JEOPARDY. 

Plea,   821,    822. 

FORTHCOMING  BONDS. 

Claims   of  title,   128,   129,   133,  134, 

357,  358. 

Execution  sales,  165. 
Garnishment  proceedings,   480. 
Illegality  proceedings,  140,  142,  464. 

FRAUD. 

Divorce,  grounds,  522. 

FRAUDULENT  DEBTORS. 
Attachment,  292,  293. 

FRIVOLOUS  APPEAL. 
Damages,  126. 

FUGITIVES   FROM   JUSTICE. 
Extradition:      See     Extradition    of 
Fugitives  from  Justice. 

GAME. 

Laws  relating  to,  842-850. 

GARNISHMENT. 

Accrual  of  indebtedness  after  serv- 
ice of  summons,  145,  146. 
Administrators,  153. 
Affidavits,  Code  sections,  144,  147. 

Entry  upon,  477. 

Form,  154,  155,  475. 


880 


[REFERENCES  ARE  TO  PAGES.] 


GARNISHMENT— Cont'd. 
Affidavits — Cont'd. 

Service  of  notice  of  traverse  of 

answer,  482. 
Agent,  affidavit  and   bond   by,  144, 

147. 

Answer     by     garnishee,   Code  sec- 
tions, 144-147,  151,  152. 
Forms,   158,   159,   478. 
Traverse,   149,   150,   160,   481. 
Assignment  of  claim  to  defeat  ex- 
emption of  wages,  152,  153. 
Attachment,  in  aid  of,  480-482. 

Return  of  officer  levying,  477. 
Attorney,    affidavit    and    bond     by, 

144,  147. 
Exemption  of  money  in  hands 

of,  152. 

Bonds,   Code  sections,  144,  147. 
Dissolution      of     garnishment, 

148,   149,   157,   479. 
Entry  upon,  477. 
Forms,  154,  155,  476. 
Forthcoming,  480. 
Claim    of    property,    146,    149,    150, 

480. 
Corporation,  exemption  of  officers' 

salaries,  153. 
Notice  of  traverse,  150. 
Service  on,  145. 

Costs,  expense  of  answering,  159. 
Garnishee  not  liable,  when,  151. 
Daily  wages,  answer  of  garnishee, 

159. 

Exemption,  152,  153. 
Damages  for  wrongful  garnishment, 

152. 
Delivery  of  property  by  garnishee, 

enforcing,  151. 
Discharge   of  garnishee,   judgment, 

163. 

Dismissal,  482. 
Dissolution,    146,    148-150,    157,    479, 

483. 

Entry  upon  bond  and  affidavit,  477. 
Evidence,   transfer  of  claim  to  de- 
feat exemption  of  wages,  153. 
Executors,   153. 
Exemptions,  146,  152,  153. 
Forthcoming  bond,  480. 
Interest,  liability,  151. 
Issuance,  144. 
Judgment,     answer     of     garnishee, 

161,  162. 
Bond,  148,  150,  151. 

Dissolving         garnishment, 
481. 


GARNISHMENT— Cont'd. 
Judgment — Cont'd. 

Discharge  of  garnishee,  163. 

Indebtedness  admitted,  481. 
Jury  trial,  issue  on  traverse,  149. 
Laborers'  wages,  exemption,  152. 

Transfer  of  claim  to  defeat  ex- 
emption,  152,   153. 
Legatees,   153. 

Monthly     wages,     answer    of    gar- 
nishee, 159. 

Exemption,  152,  153. 
Non-residents  of  county,  146-148. 
Notice  of  dissolution,  157,  483. 

Traverse  of  answer,  150,  161. 
Officers  authorized    to     issue,   144, 

147. 

Ordinary,  judgment  of,  146. 
Parties,  claimants,  150. 
Partner,  affidavit  and  bond  by,  144. 
Property  subject,  145,  146. 
Return,  144,  147,  148,  157,  477. 
Service  of  notice  of  traverse  of  an- 
swer, 150. 

Summons    on    garnishee,    144, 

145,  148,  477. 

Summons,    144,    145,    147,    148,    156, 

476. 
Time  for  garnishee  to  appear,  144, 

146,  147. 

Of    notice    of    traverse    of   an- 
swer, 150. 

Transfer  of  claim  to  defeat  exemp- 
tion of  wages,  152,   153. 
Traverse  of  answer    of    garnishee, 

149,  150,  160,  481. 
Notice  to  garnishee,  482. 
Trial  of  issue  on  traverse,  149. 
Wages,  answer  of  garnishee,   159. 
Exemption,  152. 

Transfer  of  claim  to  defeat  ex- 
emption,  152,   153. 

GENERAL   ASSEMBLY. 

Continuance  for  absence  of  coun- 
sel, party  or  witness  in  attend- 
ance on,  19. 

GENERAL   DEMURRERS. 
Equitable  petition,   449. 
Indictment,   818. 

GEORGIA    STATE    SANITARIUM. 

Commitment  to,  564-566. 

GIFTS. 

Deeds.  395. 


INDEX 


881 


[REFERENCES  ARE  TO  PAGES.] 


GOLD  COIN  NOTE. 

Form,  716. 

GOOD  BEHAVIOR. 

Warrant,   803,   804. 

GRAND  JURY. 

Affidavit  of  defaulting  juror,  587. 

Oath  of  witness  before,  586. 

Plea    in    abatement   on    ground    of 

disqualification,   820. 
Precept  for  summoning,  585. 
Tales  jurors,  selection,  587. 
Venire  facias,  586. 

GUARDIAN  AND  WARD. 
Application     for     guardianship     of 

minor  over  14,  485. 
Minor's  application,  486. 
Order  appointing  guardian,  485. 
Application     for     guardianship     of 

minor  under  14,  487. 
Citation,  487. 
Order  appointing  guardian,  488. 

For  citation,  487. 
Bond  of  guardian,  490. 
Natural  guardian,  484. 
Relief  of  surety,  citation,  492. 
Order,   492. 
Petition,  491. 
Temporary  guardian,  489. 
Commencement     of    declaration  or 

petition,  suit  by  guardian,  386. 
Deeds  of  guardian,  400. 
To  minors,  501. 
To   purchaser    at     public  sale, 

501. 

Dismission,  letters  of,  citation,  498. 
Order,  498. 

Of  citation,  497. 
Petition,  497. 

Rule  absolute,  499. 
Rule  nisi,  499. 
Petition  to  set  aside,  498. 
Encroachment     on     corpus,     order, 

495. 

Petition,  494. 
Final   receipt,   495. 
Insane   persons:    See   Insanity  and 

Lunatics. 
Investment  of  trust  funds,  deed  to 

lands  invested  in,  501. 
Order,    500. 
Petition,  500. 

Letters  of  dismission,  497-499. 
Guardianship,    490,    491. 


GUARDIAN  AND  WARD— Cont'd. 
Natural  guardian,  bond,  484. 

Petition  and  order  thereon,  484. 
Oath  of  guardian,  488. 

Temporary  guardian,  489. 
Petition  of  natural  guardian,  484. 

Order   thereon,    484. 
Receipt,  final,  49&. 
Removal   of  .guardian,    petition   by 

minor,   486. 
Resignation,  citation,  496. 

Order  accepting,  496. 

Petition,   496. 

Sales  for  reinvestment,  advertise- 
ment preliminary  to  petition, 
493. 

Order,   494. 

Petition,  493. 
Temporary   guardian,    bond,    489. 

Letters,   490. 

Oath,   489. 

GUARDIAN  AD  LITEM. 

Agreement  to  serve,  705. 

Appointment,  241,  242. 

Idiots,   553,   554. 

Insane  persons,  558. 

Order  appointing,  704. 

Wills,    probate   proceedings,    783. 

HABEAS   CORPUS. 
Affidavit  for  seizure  of  person  de- 
tained,  505. 

Petitioner,   504. 

To  return  of  custodian,   507. 
Common  law,  petition  at,  503. 
Criminal  case,  affidavit  to  answer, 
841. 

Affidavit   to   petition,   840. 

Petition,  839. 

Return  to  writ,  841. 

Writ,  840. 
Entry  of  service  by  citizen,   505. 

By  officer,  504. 
Judgment,   508. 
Petition,  common  law,   503. 

Criminal  case, -839. 
Precept  for  arrest  of  body  of  per- 
son detained,  506. 
Return,  affidavit,  507. 

Custodian,   506. 
Service,   entry  by  citizen,  505. 

Entry  by  officer,  504. 
Witnesses    in    imprisonment,    59. 
Writ,   form,   504. 


882 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


HABERE     FACIAS     POSSESSION- 
EM. 

Writ,  579. 
HABITUAL  INTOXICATION. 

Divorce,  grounds,  524. 
HEARSAY  EVIDENCE. 
Definition,    37. 
HIGHWAYS. 
See   Roads. 

HOMESTEAD  AND  EXEMPTIONS. 
Application        for       Constitutional 
homestead,   affidavit    to   peti- 
tion, 510. 
Notice     served     by     applicant, 

512. 

Order  to  survey,  511. 
Petition,   508. 
Schedule  of  property,  509. 

Objection  to,  510. 
Appraisers,  appointment,   514. 

Return,  515. 
Claim  of  title,  139. 
County    surveyor,    approval    of    re- 
turn, 514. 

Petition  for  order  to,  511. 
Return,  514. 

Illegality   proceedings,    142. 
Levy  and  sale,   affidavit,   517. 
Counter  affidavit,  518. 
Indemnifying  bond,  518. 
List  of  creditors,   509. 
Mortgage,  waiver  in,   631,   633. 
Notice  of  application  to  set  apart 

homestead,   512. 
'    Affidavit,  512. 
Certificate,  512. 
Preparation  of  notice,  affidavit, 

513. 

Service,   affidavit,   513. 
Order  to  survey,  511. 
Petition  for,  511. 
Reinvestment,  sale     of    homestead 

for,  515,  516. 

Sale   of   homestead     for    reinvest- 
ment, confirmation,  516. 
Order,   516. 
Petition,  515. 

Schedule  of  exempt  property,  509, 

510,  519. 
Sheriff's  entry  where  property  was 

exempted,  755. 
Statutory    homestead,    affidavit     of 

applicant,  519. 
Schedule,   519. 
Waiver  in  note,  713,  715. 


HUNTING. 

Game  laws,  842-850. 

HUSBAND  AND  WIFE. 

Alimony:  See  Divorce  and  Ali- 
mony. 

Divorce:  See  Divorce  and  Ali- 
mony. 

Marriage:     See  Marriage. 

Paper  belonging  to  wife  as  evi- 
dence against  husband,  46. 

IDENTITY. 
Proof  of,  37. 

IDIOTS. 

See  Insanity  and  Lunatics. 

ILLEGAL  CONSIDERATION. 
Plea  of,  366. 
ILLEGAL   CONTRACTS. 

Fertilizers,  plea,  471. 
ILLEGALITIES. 

Execution,    affidavit    of,    140,    141, 
143,  461,  462. 

Amendment  of  affidavit,  141. 

Attorney  in  fact  filing  affidavit, 
141. 

Bond,  140. 

Burden  of  proof,  141. 

Chattel    mortgage    fi.   fa.,   596, 
642. 

Damages  for  delay,  140. 

Excessive  levy  as  ground,  142. 

Forthcoming    bond,     140,     142, 
464. 

Homestead,  142. 

Joining  issue,  463. 

Judgment,  141,  464. 

Justice  court,  140. 

Levy  to  precede,   140. 

Order     making     sheriff    party. 
462. 

Return,  140. 

Sale  of  property,   141. 

Second  affidavit,  143. 

Traverse,  463. 

Sheriff's  return,  462. 

Trial,   140,   141. 

Trustee  filing  affidavit,   141. 

Verdict  of  jury,  463. 

ILLEGITIMATE    CHILDREN. 

See  Bastards  and  Bastardy. 

ILLNESS. 

Counsel,  continuance,  20,  25,  375. 

Party,  continuance,  20,  23,  375. 


INDEX 


883 


[ REFERENCES    ARE    TO    PAGES.] 


IMPANELING  JURY. 
Statutory  provision,  16. 

IMPEACHMENT. 
Judges,  7. 

IMPRISONMENT. 
Witnesses,  habeas  corpus  ad  testi- 
ficandum,   59. 

IN  FORMA  PAUPERIS. 

Affidavit  of  inability  to  pay  fee  for 

advertising     execution     sale     of 

land,  754. 
Appeal,  274. 

Certiorari  proceedings,  338. 
Chattel  mortgage  foreclosure,  643. 
Claims  of  title,  128,  133,  357. 
Justice  court,   appeal,   124. 
Supersedeas  bond,   700. 

INDICTMENT. 

Certificate  of  clerk  of  court  to,  in 

extradition  proceedings,  838. 
Demurrers,   818. 
General  demurrer,  818. 
General  form,  814. 
Misnomer,  plea,  819. 
Special  demurrer,  818. 

INDIRECT  EVIDENCE. 

Definition,   32. 

INDORSEMENTS. 

Executions,  costs  and  fees,  455,  456. 
Judgment  against  indorser,  580. 

INFANTS. 

See  Guardian  and  Ward;  Guar- 
dian ad  Litem. 

Commencement    of    declaration    or 
petition,  suit  by  next  friend,  385. 
Witnesses,   competency,   62. 

INFERENCE. 

Jury  may  infer  what,  34. 

INJUNCTION. 

Affidavit,   271. 

Used   as   evidence   on   hearing, 

545. 

Bill  of  exceptions,  693. 
Bond,  546. 
Dissolution,      acknowledgment      of 

motion,  547. 

Bonds    substituted    for    injunc- 
tion, 548. 
Motion,  547. 


INJUNCTION— Cont'd. 
Dissolution — Cont'd. 

Order  granting  motion,  548. 

Order  overruling  motion,  548. 

Rule  nisi,  547. 

Interlocutory  injunction  after  hear- 
ing, order  for,  549. 

Short   form,    549. 

Petition,  447,  544. 

Verification,  544. 

Restraining  order,   vacation,   548. 
Temporary,  order  for,  545. 
Vacation,  motion,  548. 
Verification  of  petition,  544. 

INSANITY  AND  LUNATICS. 
Commitment  of  insane  person,  affi- 
davit,  564. 

Certificate  of  clerk,  565. 
Jail,    to,    pending    removal    to 

State  sanitarium,  566. 
State  sanitarium,  to,  566. 
Warrant,    565. 
Examination  of  capacity  to  manage 

estate,  550. 

Guardian    for    idiot,    ad    litem,    ap- 
pointment, 553,  554. 
Affidavit  as  to  notice,  552. 
Commission  for  examination  of 

alleged  idiot,  554. 
Notice  to  relatives,  552. 
Oath  of  petitioner,  552. 
Order  nisi,  553. 
Petition,  551. 
Return  of  commissioners,   556. 

Order  thereupon,  556. 
Guardian  for  person  unable  to  man- 
age estate,  ad  litem,  order  for 
appointment,  558. 
Affidavit  to  petition,  557. 
Commission,  559. 
Examination  of  capacity,  550. 
Judgment,  561. 
Jury,  affidavit,  561. 

Finding,  561. 
Notice  of  hearing,  560. 
Order  for  commission,  559. 
Order  nisi,  558. 
Petition,  557. 
Revocation      of     guardianship, 

.  562-564. 

Service  on  alleged  insane  per- 
son, 558. 

Venire  facias,  560. 
Jury    in    lunacy   proceedings,   num- 
ber, 555. 
Oath,   555,   561. 


884 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


INSANITY   AND   LUNATICS 

— Cont'd. 

Plea  of  insanity,  criminal  case,  823. 
Restoration  to   sanity,   petition  for 

examination,  562. 
Revocation      of     guardianship, 

issue,  563. 
Judgment,   564. 
Notice  to  guardian,  562. 
Oath  of  jury,  563. 
Precept      for      summoning 

jury,  563. 

Verdict  of  jury,  564. 
Witnesses,  competency,  62. 

INSCRIPTIONS. 

Monuments,  etc.,  copies  as  evi- 
dence, 36. 

INSOLVENT   PAPERS. 

Sale  by  administrator,  216,  217. 

INTEREST. 

Garnishment  proceedings,   liability, 

151. 
Pleas  of  usury,  567,  568. 

INTERLOCUTORY    INJUNCTION. 

Order,  549. 
Short  form,   549. 

INTERPRETERS. 

Evidence  through,   62. 

INTERROGATORIES. 

See  Depositions  without  Com- 
mission. 

Acknowledgment  of  filing  and 
waiver,  570. 

Affidavit,  arrest  of  witness  refusing 
to  appear,  576. 

Agreement  to  take,  65,  68. 

Arrest  of  witness  refusing  to  ap- 
pear, 576. 

Caption  of  agreement  to  take,  69. 

Certificate    of   transmission,    573. 

Code  form,   63,   64. 

Commission,  570. 

Contempt,  witness  refusing  to  ap- 
pear, 576. 

Continuance  for  non-return,  21. 

Court  commissioner,  return,  575. 

Cross-interrogatories,  65,  67. 

Entry  of  clerk,  570. 

Filing,  67. 

Forms,  63,  64,  66,  68,  69. 

Instructions  to  guide  in  taking  tes- 
timony, 571. 

Irregular  commission,  64. 


INTERROGATORIES— Cont'd. 

Leading  questions,  65. 

Mail,  return  of  commission  by,  65. 

Nomination  of  commissioners,  572. 

Notice,   64,   67,   570. 

Oath  of  witness,  572. 

Order  to  arrest  witness  refusing  to 

appear,  576. 
Original,  form,  569. 
Receipt  of  clerk  or  justice  of  the 

peace,  573. 
Return    of    commissioners,    64,    65, 

69,  572. 

•Court  commissioner,  575. 
Signature,  67. 

Time  for  return  of  commissioners, 
64. 

INTOXICATION. 

Divorce,  grounds,  524-. 
INTRUDERS. 

See  Ejectment. 
Removal,  affidavit,  577. 
Counter  affidavit,   577. 
Joinder  of  issue,  578. 
Judgment,  578. 

Where      issue      is      found 

against  plaintiff,   580. 
Verdict,  578. 

Writ  of  habere  facias   posses- 
sionem,  579. 

INVENTORY. 

Decedent's  estate,  245-248. 

INVESTMENT. 

Guardianship  funds,  500,  501. 

Trust  funds,   773,  774. 

JACKS. 

Liens  of  owners,  612-614. 

JEOPARDY. 

Plea  of  former  jeopardy,  821,  822. 

JOINT  AND  SEVERAL  NOTE. 

Form,  719. 

JOINT   PARTIES. 

Continuance,  30. 

JUDGES. 

Disqualification,       clerk       appoints 

judge,  when,   8. 
Code  section  determining,  1,  6. 
Compelling    another    judge    to 

perform  duty,  4. 
Contract  prepared  by  judge  as 
attorney,  6. 


INDEX 


885 


[REFERENCES  ARE  TO  PAGES.] 


JUDGES — Cont'd. 
Disqualification — Cont'd. 

Diagram   showing   relationship, 

.3. 

Duty  of  judge  to  disqualify,  6. 
Form,  6. 
Impeachment,  7. 
Judgment  voidable,  4. 
Justices  of  the  peace,  5. 
Mayors,  4. 
Notaries   public,   12. 
Personal  knowledge,   4. 
Police  commissioners,  5. 
Political  activity,   4. 
Pro  hac  vice,  form  of  order  ap- 
pointing, 8. 
Selection  of  judge,  7. 
Procuring   services   of   another 

judge,  7. 

Relationship,  counsel,   4,  9,  10. 
Determination  of  degree,  2. 
Party  to  cause,  11. 
Person  interested  in  result 

of  suit,  9. 
Suggestion  of,  5. 
Transfer   of   suit   to   adjoining 

justice's  district,  5,  6. 
County  site,  6. 
Waiver,   10. 

Signature,   clerk   of  court's   certifi- 
cate as  to,  390. 

JUDGMENTS  AND  DECREES. 

Administrator,  against,   257,   258. 
For,  259. 
On   caveat   on    application    for 

permanent  letters,   199. 
Attachment   proceedings,    290,    294. 
Attorney  for  non-resident  plaintiff, 

582. 

Auditor's  report,  exceptions  to,  306. 
Award  of  arbitrators,  278,  279. 
Bastards,   requiring   appearance   of 

putative  father,  832. 
Requiring     bond     for     mainte- 
nance and  education  of,  831. 
Certiorari,  343. 

Claim  cases,  135,  136,  359,  360. 
Contract  in  writing,  on,  581. 
Costs,  385. 

Against    plaintiff    for    balance 

of,  582. 
Damages   recovered   less   than   ten 

dollars,  581. 

Dispossessory   warrant,    427. 
Dormancy,    scire   facias    to   revive, 
749,  750. 


JUDGMENTS     AND     DECREES 

— Cont'd. 
Dower,   436. 
Ejectment,  443. 

Forcible  entry  and  detainer,  474. 
Garnishment,  answer  of  garnishee, 
161,  162. 

.Bond,  148,  150,  151. 

Discharging  garnishee,   163. 

Indebtedness  admitted,  481. 
Habeas    corpus,   508. 
Illegality    proceedings,    conclusive- 
ness  in,  141. 
Indorser,  against,  580. 
Intruders,  removal,  578,  580. 
Justice  court,  591. 

Appeal,   126,  127. 

Principal    and    surety,    596. 
Liens,  setting  up,  607. 
Lost  papers,  establishment,  621. 
Lunacy  proceedings,  561,  564. 
Money  verdict,  on,  580. 
Mortgages,    foreclosure,    648. 
Principal  and  surety,   against,  580. 
Remittitur,    701. 
Res  judicata,  plea,  724. 
Road  commissioner,  against,   739. 
Trover,  769. 

Unconditional  contract   in  writing, 
on,  581. 

JUDICIAL  NOTICE. 

Scope,  33. 
JUDICIAL    SALES. 

See  Sales. 
JURISDICTION. 

Affidavit  to  plea,  583. 
Claim  cases,  objections,  137. 
Justices    of    the    peace,    78,    87-93. 

See  Justices  of  the  Peace. 
Plea,  583. 

Justice  court,  102,  106,  584. 

JURY  AND  JURORS. 

Affidavit  of  defaulting  juror,  587. 
Challenge   to   array,   588,   825. 
Compensation,   120. 
Demand,  city  or  county  court,  829. 
Diagram   showing   relationship,    15. 
Disqualification,  age,  16. 

Relationship,  affinity,  16. 

Degree,  13-15,  17. 

Diagram,   15. 
Drawing,    118, 119. 
Impartial   jury,    right   of   party   to, 

13,   14. 
Lunacy  proceedings,   555,   561,   563. 


886 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


JURY  AND  JURORS— Cont'd. 
Oath,  119,  826. 

Justice  court,  592. 

Lunacy    proceedings,    555,    561, 
563. 

Preliminary,   825. 

Witness  before  grand  jury,  586. 
Objection  propter  defectum,  18. 
Panels,  making  up,   16. 
Precept      for      summoning      grand 

jurors,  585. 

Purging,  right  of  party,  14. 
Questions  on  voir  dire,  826. 
Striking,  16. 
Summons,  city  court,  753. 

Court  of  ordinary,  753. 

Justice  court,   592. 

Precept,   472. 

Superior   court,   752. 
Tales  grand  jurors,  order  of  court, 
587. 

Selection,  587. 
Trial,  claim  cases,  130,  133-135. 

Issue  on  traverse  to  garnishee's 

answer,  149. 
Venire  facias,  586. 

JUSTICES       AND       JUSTICE 
COURTS. 

See  Judges. 

Accounts,     actions     on:      See     Ac- 
counts, Action  on. 
Appeal,  abatement,  plea  of,  124. 

Amendments,   124. 

Answer,   124. 

Attachment,  124. 

Attorney,  authority,  120,  124. 

Bonds,  118,  120,  121,  125. 

Certiorari  or  appeal,  122. 

Corporation  taking,  120,  125. 

Costs,   126. 

Damages,  frivolous  appeal,  126. 

Dismissal  of  case,  120,  126. 

Docket  as  evidence,  126. 

Entry  by  attorney,  120,  124. 

Establishment    of    lost    papers, 
120. 

Form,  272. 

In  forma  pauperis,  124. 

Joint   contractors   taking,   120. 

Joint   defendants,   126. 

Judgment,  126,  127. 

Jurisdiction,   127. 

Jurisdictional  amount,  117,  118, 
124. 

Jury,  compensation,  120. 
Default  of  jurors,  119. 


JUSTICES  AND  JUSTICE  COURTS 

— Cont'd. 
Appeal — Cont'd. 

Jury — Cont'd. 

Drawing,   118,  119. 
Form,  273. 
Oath,  119. 
Right,   118. 

Parties,  127. 

Partners  taking,  120. 

Pleas,  117,  127. 

Right  of,  117. 

Time,    127. 
Authority,  107. 

Bills  and  notes,  petition  in  suit  on, 
96. 

Plea  of  non  est  factum,  102. 

Summons  in  suit  on,  95. 
Cause  of  action,  what  is,  93,  94. 
Chattel  mortgages,  foreclosure,  641. 
Claim  cases:     See  Claim  of  Title. 
Commencement  of  suits,  93-99. 
Constables  appointed  by,  80-82. 
Continuances,    22,    99,   101. 
Contract,  action  for  breach,  589. 
Contradictory   pleas,    103. 
Coroner,  acting  as,  78. 
Counter-affidavit    in    action    on    ac- 
count, 98,   111,  589. 
Criminal  warrant,   800-803. 
Damages    to    personalty,    suit    for, 

590. 
Defenses,  pleading,  101. 

Time  to  make,  100,  101. 
Dilatory  pleas,  102. 
Disqualification,  76,  77. 
Dockets,  furnishing,  106. 
Duties,  107. 
Election,  75,  76. 

Entry  of  service  of  summons,  591. 
Evidence,  accounts,  109. 
Execution,     advertising    levy,     1C3, 
165. 

Advertising  sale,  164. 

Form,  164,  459. 

Levy,  165. 

Sale,   163-166. 

Time  of  issuance,  163. 
Failure  of  consideration,  plea,  102, 

104. 

Fees,   382. 

Foreclosure    of    chattel    mortgage, 
affidavits,  593,  594. 

Fi.  fa.,   595. 

In  forma  pauperis,  596. 

Replevy   bond,   595. 
Illegality    to    execution,    140. 


INDEX 


887 


[REFERENCES  ARE  TO  PAGES.] 


JUSTICES  AND  JUSTICE  COURTS 

— Cont'd. 

Interrogatories,  receipt,   573. 
Judgment,  591. 

Against    principal    and    surety, 
596. 

Duty  to  render,  101. 

Place  of  rendering,   101. 
Jurisdiction,   amount   in   controver- 
sy,  87,   88. 

Appeal  to  superior  court,   117. 

Bills  and  notes,  88. 

Co-obligors,  88. 

Decisions  of  court  relating  to, 
89-93. 

Ex  contractu  actions,  87. 

Forcible  entry  and  detainer,  87. 

Limits,  78,  88. 

Plea  to,  102,  106,  584. 

Possession  of  personalty,  87. 

Residence  of  parties,  88. 

Territorial  limits,  78,  88. 
Jury,  appeal  to,  see  Appeal,  ante. 

Oath,  592. 

Summons,   592. 
Limitation     of     actions,     accounts, 

109. 
Lost     papers,     establishment,     625, 

626. 
Mule,   action   to   recover   value   of, 

591. 

Non  est  factum,  plea,  102. 
Notaries  public,  ex  officio,  appoint- 
ment,  74,   75,    662. 

Commission,  75. 

Dockets  furnished,  106. 

Malpractice  in  office,  74. 

Number,  74. 

Oath,  662. 

Removal,  74. 

Term  of  office,  74. 
Number,    74. 
Oath  of  witnesses,  108. 
Open  accounts,  time  to  sue  on,  109. 
Payment,  plea,  102,  105. 
Petition  in  suit  on  note,  96. 
Pleas,  102-106,  584. 
Powers,  78. 
Qualifications,  75. 
Removal  of  suits,  78. 
Ruling,  75. 
Service  of  summons,  98,  99. 

Entry  of,   591. 
Set-off,  plea  of,  103. 
Sheriffs,   execution   of   process,   99. 
Subpoenas  for  witnesses,  58,  62,  592. 


JUSTICES  AND  JUSTICE  COURTS 

— Cont'd. 
Summons,  account,  action  on,  97. 

Commencement  of  actions,  93. 

Entry  of  service,   591. 

Form,  94,  95,  97,  588. 

Jury,   592. 

Service,  98,  99. 
Term  of  office,  74. 
Time  action  considered  commenced, 

94. 
Trial,  continuances,  22,  99,  101. 

Time,   99,   101. 
Vacancy  in  office,  75. 
Verification  of  account,  97,  98,  110. 
Written  pleas,  necessity,  102. 

JUSTIFICATION. 
Security  on  recognizance,  810. 
KNOWLEDGE. 

Judge,    disqualification    because    of 
personal  knowledge  of  fact,  4. 

LANDLORD  AND  TENANT. 
Assignment  of  lease,  282. 

Lien,   600,   602. 

City  property,  lease  contract,  603. 
Claim  cases,  137. 
Contract  with  tenant,  603. 
Lease    contract   for   city   property, 

603. 

Lien  of  landlord,   assignment,   600, 
602. 

Execution,  601. 

Foreclosure,    600-602. 

Note  creating,  598. 

Special  contract  creating,   599. 
Note     creating     landlord's     special 
lien,   598. 

Endorsement,  599. 

Rent,   720,   721. 
Supplies,  lien,  assignment,  600,  602. 

Execution,  601. 

Foreclosure,  600-602. 

Special  contract  creating,  599. 
Timber  lease,  763. 
Turpentine    lease,   764. 

LAW. 

Presumptions,   definition,   34. 

LEADING  QUESTIONS. 

Interrogatories,  65. 

LEASE. 

See  Landlord  and  Tenant. 

LEDGERS. 

Evidence,  admissibility  in,  40. 


888 


[REFERENCES  ARE  TO  PAGES.] 


LEGATEES. 

Garnishment,  exemption,  153. 

LEGISLATURE. 

Continuance  for  absence  of  counsel, 

party,   or   witness    in   attendance 

on,  19. 

LETTERS  OF  ADMINISTRATION. 
See  Administrators  and  Executors. 
LETTERS    OF   GUARDIANSHIP. 
Dismission  from  guardianship,  497- 

499. 
Forms,  490,  491. 

LETTERS  TESTAMENTARY. 

Form,  785,  786. 

LEVITICAL  DEGREES. 

Relationship,   521. 

LEVY. 

Particular  writs.  See  specific  heads. 

LICENSES. 

Fishing,  857. 
Marriage,  522. 

LIENS. 

Affidavit,    foreclosure    of    lien,    608, 

610,  611,  613,  614,  616,  617. 
Boars,  owners  of,  612-614. 
Bulls,  owners  of,  612-614. 
Contractors,  605,  606. 
Declaring  claim  of  lien  on  real  es- 
tate, 605,  606. 
Execution,  foreclosure  of  lien,  608, 

610-612,  614-616,  618. 
Judgment  setting  up  lien,  607. 
Foreclosure,  boars,   bulls,  etc.,  lien 

on,  612-614. 
Laborer's     lien,     610-612,     617, 

618. 

Logging  liens,  614,  615. 
Personalty,  608,  609. 
Replevy  bond,  618. 
Steamboat  liens,  616. 
Jacks,  owners  of,  612-614. 
Judgment  on  verdict  setting  up  lien, 

607. 
Laborer's  lien,  foreclosure,  610-612, 

617,    618. 

Landlord,   assignment,   600,   602. 
Execution,   601. 
Foreclosure,  600-602. 
Note  creating,  598. 
Special  contract  creating,  599. 
Materialman,  605,  606. 


LIENS Cont'd. 

Mechanic's,   claim,   376. 

Personalty,  record  of  claim,  610. 

Petition  to  foreclose,  376. 
Rent   note   with,   721. 
Replevy   bond,   foreclosure   of   lien, 
618. 

Sawmills,  lien  for  logs  furnished  to, 

614,   615. 

Special  lien  of  laborer,  611,  612. 
Stallions,  owners  of,  612-614. 
Steamboats,  616. 
Steam  mill    laborer's  lien  on,   G17, 

618. 
Verdict  setting  up  lien,  606. 

LIMITATION  OF  ACTIONS. 
Account,  action  on,  109. 
Plea  of  statute  of,  620. 
By  administrator,  256. 

LIS   PENDENS. 

Garnishment,  475-480.  See  Garnish- 
ment. 

Plea,  170,  619. 

Submission  to  arbitration,  278. 
LOAN  DEEDS. 

Bond  to  reconvey,  407,  413,  418. 
Cancellation,  410,  417,  418. 
Power  of  sale,  405. 
Promissory   note,    411. 
LOGS. 

Liens  for  logs  furnished  sawmill, 
614,  615. 

LOST   PAPERS. 

Affidavit  to  petition  to  establish 
copy,  625. 

Certificate  of  justice  to  copy  estab- 
lished, 626. 

Deeds,  establishment,  oath  to  copy, 

422. 

Petition,  422,  622. 
Rule  absolute,  423. 
Rule  nisi,  423. 
Judgment  establishing  office  paper, 

621. 

Justice  court,  appeal  of  proceedings 
to  establish   instrument,   120. 
Proceedings    to    establish    copy 
of  private  paper  in,  625,  626. 
Notes,  establishment,  622. 
Oath  to  copy,  623. 
Order,    establishment    proceedings, 
624. 


INDEX 


889 


[REFERENCES  ARK  TO  PAGES.] 


LOST  PAPERS— Cont'd. 
Petition,     establishment     of     docu- 
ment not  an  office  paper,  622. 
Establishment   of    office    paper, 

621. 

Rule    absolute,    establishment    pro- 
ceedings, 624,  626. 
Rule    nisi,   establishment    proceed- 
ings, 623,  626. 

LUNATICS. 

See  Insanity  and  Lunatics. 
MAGISTRATES. 

See  Justices  and  Justice  Courts. 
MAIL. 

Commission   to   take  testimony   re- 
turned by,  65. 

MANDAMUS. 

Affidavit  to  answer,  630. 

Petition,  628. 
Answer,  629. 

E*ntry   of   service   of  process,   629. 
Order  of  court,  628. 
Petition,  627. 
Process,  629. 
Rule   absolute,   630. 

MANIFOLD  COPY. 

Attorney's  fees  on  notes,  notice,  178, 
712. 

MARINES. 

Roster  as  evidence,  36. 

MARRIAGE. 

See  Husband  and  Wife. 

Alimony:      See    Divorce    and    Ali- 
mony. 

Certificate,   522. 

Divorce:     See  Divorce  and  Alimony. 

Levitical    degrees    of    relationship, 
521. 

License,  522. 

Prohibited   degrees  of  relationship, 
520. 

MASTER  AND  SERVANT. 

Contract  between,  603. 

MATERIALMEN. 

Liens,  605,  606. 

MAYOR. 

Disqualification   as  judge,   4. 

MECHANIC'S  LIENS. 

Claim,  376. 

Record,   610. 

Foreclosure,  376,  610-612,  617,  618. 


MEMORANDA. 

Refreshing    memory    of    witnesses, 
40,  41. 

MENTAL  CAPACITY. 
See  Insanity  and  Lunatics. 

MERCHANTS. 

Books   of  account  as   evidence,   37- 
40. 

MESNE  PROFITS. 
Complaint  for,  438. 
MINORS. 

See  Guardian  and  Ward;  Guar- 
dian ad  Litem. 

Commencement    of    declaration    or 
petition,  suit  by  next  friend,  385. 
Witnesses,  competency,   62. 

MISNOMER. 
Plea,  criminal  case,  819. 
MISTRIAL. 

Former  jeopardy,  plea,  822. 
MONEY  RULE. 
Demand,  740. 
MONUMENTS. 

Inscriptions  on,  copies  as  evidence, 
36. 

MORTGAGES. 

Advertisement  of  sale  under  power, 

64£. 

Assignment,  642. 
Chattel  mortgage  and  note,  638. 

Foreclosure,  affidavit,  593,   594, 

640,   644. 

Bond   on    contest   of   mort- 
gage, 645. 
Fi  fa.,  595,  640. 
Illegality  to  fi.  fa.,  596,  642. 
Justice  court,  641. 
Pauper  affidavit,   596,  643. 
Replevy  bond,  595,  643. 
Equitable  foreclosure  on  realty,  af- 
fidavit, 647. 
Decree,  648. 
Petition,  646. 
Verdict,  648. 

Fi.  fa.,  superior  court,  637. 
Foreclosure    on     realty,     equitable, 

646-648. 
Fi.  fa.,  637. 
Petition,  635. 
Rule  absolute,  636. 
Rule  nisi,  635. 


890 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


MORTGAGES— Confd. 
Homestead,  waiver  of,  631,  633. 
Note  and   chattel   mortgage,   638. 
Power  of  sale,  633,  645. 
Probate  for  record,  632. 
Record,  clerk's  entry,  633. 

Probate    for,    632. 
Sale,  power  of,  633,  645. 
Waiver  of  homestead,  631,  633. 
MOTIONS. 

Continuance,  service  of  rule  nisi,  30. 
Injunction,  dissolution,   547. 

Vacation,    548. 
New  trial,  651,  653,  656,  658. 

MUNICIPAL    CORPORATIONS. 

Demand  on,  before  suit,  650. 
MUTUAL  ACCOUNTS. 
Limitations,   109. 
NE  EXEAT. 

Divorce    and    alimony    proceedings, 
541,  542. 

NE   UNQUES   ADMINISTRATOR. 
Plea,  254. 
NEEL  ACT. 

Ejectment,  petition,  445. 
NEGATIVE  EVIDENCE. 
Weight,  35. 

NEGOTIABLE    INSTRUMENTS. 
See  Promissory  Notes  and  Bills  of 
Exchange. 

NEW  TRIAL. 

Acknowledgment  of  service  of  mo- 
tion,  656. 

Affidavit,     newly     discovered     evi- 
dence, 658. 

Amended    motion,    653. 
Approval   of  motion,   656. 
Brief    of    evidence,    agreement    of 

counsel,  658. 
Approval,  657. 
Order  enlarging  time  for  filing, 

C56. 

Grounds,  652,  653. 
Motion,   651,   653. 

Acknowledgment      of      service, 

656. 

Amendment,   653. 
Approval,  656. 
Giving  time  to  perfect,  653. 
Order  refusing,  658. 


NEW   TRIAL—  Con  t'd. 
Newly     discovered     evidence,     affi- 
davit, 658. 

Order    enlarging   time    for    submit- 
ting amendments,  filing  brief, 
etc.,  656. 
Giving  time  to  perfect  motion, 

653. 

Refusing  motion,  658. 
Rule  nisi  to  show  cause,  652. 

NEWLY       DISCOVERED      EVI- 
DENCE. 

New  trial,  affidavit,  658. 
NEXT   FRIEND. 

Commencement    of    declaration    or 
petition,  infant  suing  by,  385. 

NON  EST  FACTUM. 

Plea,  action  on  note,  713. 
Justice  court,  102. 

NON-RESIDENTS. 

Fish  laws  relating  to,  856. 

License,  857. 
Game  license,  844,  850. 
Garnishment,   146-148. 
Heirs,   dower,   433. 
Judgment  against  attorney  of  non- 
resident  plaintiff,   582. 
Process,  service  by  publication,  705. 

NONSUIT. 

Non-production  of  papers,  52. 
NOTARIES  PUBLIC. 
Certificate,  moral   character,   660. 
Clerk    of  -court's    certificate    as    to 
authority,  389,  390. 

Official  character,  661. 
Commission,  661. 
Disqualification,  12. 
Fees,   382. 

Judge's   appointment,   660. 
Justices  of  the  peace  ex  officio,  ap- 
pointment, 74,  75,  662. 

Commission,  75. 

Dockets  furnished,  106. 

Malpractice  in  office,  74. 

Number,   74. 

Oath,  662. 

Removal,  74. 

Term  of  office,  74. 
Oath,    661. 

Petition  for  appointment,  659. 
NOTES. 

See  Promissory  Notes  and  Bills  of 
Exchange. 


INDEX 


891 


[REFERENCES  ARH  TO  PAGES.] 


NOTICE. 

Administrator,  proceeding  to  re- 
quire making  of  title  under 
bond  for  title  of  intestate, 
205. 

Sale  by,  214,  215,  217,  221,  225. 
Arbitrators,  by,  to  parties,  277. 
Attachment,   to   defendant   in,   288, 

289,  295. 
Attorney's     fees,     manifold     copy, 

178,    712. 

Notes,  recovery,  175,  178,  712. 
Auditors,  by,  303. 
Bastard,    legitimation    proceedings, 

670. 
Certiorari,  exceptions  to  answer  to 

writ,  342. 
Sanction  of,  339. 
Commission  to  take  testimony,  64, 

67. 

Decedent's  estate,  debtors  and  cred- 
itors of,  202. 

Depositions,  taking,  70-73,  574. 
Dower,  intention  to  apply  for,  431. 

Non-resident  heirs,  433. 
Ejectment,  to  appear,  442. 
Estrays,   taking  up,  452. 
Execution,  levy  on  land,  466. 
Garnishment,   dissolution,   157,   483. 

Traverse  of  answer,  150,  161. 
Homestead,   application   for,   512. 

Creditors,  to,   512. 
Idiots,     guardianship     proceedings, 

552. 

Insane    persons,    hearing    of    guar- 
dianship proceedings,  560. 
Interrogatories,  570. 
Landowners,  road  proceedings,  728. 
Levy  on  land  by  constable,  370. 
Nuncupative  wills,  probate,  787. 
Possessory  warrant,  certiorari,  679. 
Processioning  proceedings,  707. 
Production  of  papers,  47-50,  53,  54. 
Protest,  722. 
Road  overseer,  735. 
She'riff,  levy  by,  402. 
Taxpayers,  to,  759. 
Tax   returns,  758. 

Trust  company,  intention  to  organ- 
ize, 318. 

NOTICE  TO  PEODUCE  PAPERS. 

Acknowledgment  of  service,   664. 
Affidavit  to  render  notice  available, 

665. 

Exculpatory  affidavit,  664. 
Form,  663. 


NUL  TIEL  CORPORATION. 
Plea, '379. 
NTJLLA  BONA. 
Constables,  entry  by,  369. 
Execution,  entry,  465. 

NUMBER. 

Constables,  79. 
Continuances,  18. 
Justices  of  the  peace,  74. 

NUNCUPATIVE    WILLS. 
Affidavit  of  witnesses,  787. 
Letters  testamentary,  788. 
Notice  to  heirs,  787. 
Order  of  court,  788. 

OATHS. 

See  Affidavits. 

Administrators,   inventory   and   ap- 
praisement, 248. 

Permanent,  200. 

Temporary,  181. 
Appraisers,    decedent's   estate,    242, 

246. 

Arbitrators,  276. 
Auditors,   303. 
Claims  of  title,  127. 
Clerk  of  court,   360. 
Constables,  81,  82,  84,  368. 
Dower,    commissioners    to    assign, 

435. 

Executors,   785. 
Guardian,   permanent,  488. 

Temporary,  489. 
Jurors,    119. 

Criminal  case,  825,  -866. 

Justice  court,  592. 
Lost  papers,  copy,  422,  623. 
Notary  public,  661. 

Ex  officio  justice  of  peace,  662. 
Tax  collector,  759. 

Receiver,  758. 
Witnesses,    63,   108. 

Criminal  case,  826. 

Depositions,  70,  73. 

Grand  jury,  before,  586. 

Interrogatories,  572. 

OFFICE  PAPERS. 

Lost  papers,  establishment,  621-624. 

OFFICERS. 

Particular     officers:       See     specific 

heads. 
Rules  against:     See  Rules  Against 

Officers. 


892 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


OPEN  ACCOUNTS. 

See  Account;   Account,  Action  on. 
OPEN    SEASON. 
Game,  hunting,  849. 
OPENING  AND  CLOSING. 

Claim    cases,    139. 

OPTIONS. 

Purchase  of  land,  746. 

ORDERS. 

Particular     orders:        See     specific 
heads. 

ORDINARIES. 

Bank  charter,  certificate,  313. 
Certificate  to  copy,  665. 

Transcript  of  record,  666. 
Claim  cases  in  courts  of,  131. 
Fees,  667-669. 

Garnishment,  judgment,  146. 
Jury  summons,  753. 
Subpoena  for  witness,  666. 

OYSTERS. 

Laws  relating  to,  853-858. 

PANEL. 

Jury,  making  up,  16. 

PARENT  AND   CHILD. 

Adoption     of     child,     consent     of 

mother,  672. 

Objection  by  relatives,  673. 
Order  of  court,  672,  673. 
Petition,   671. 

Bastards:    See    Bastards    and    Bas- 
tardy. 

PARTIES. 

Absence,  continuance  for,  19,  20,  27. 

Garnishment,  150. 

Illness,  continuance  for,  20,  23,  375. 

Joint,  continuance,  30. 

Justice  court,  appeal,  127. 

Scire  facias  to  make,  362. 

Order    making    executor    party 
defendant,  748. 

PARTITION. 
Deed,  401. 

PARTNERSHIP. 

Claims  of  title  by  partner,  128. 
Commencement    of    declaration    or 

petition,  partners  suing  partners, 

385. 


PARTNERSHIP— Cont'd. 
Garnishment,  affidavit  and  bond  by 
partner,  144. 

PAUPER  AFFIDAVITS. 
See  In  Forma  Pauperis. 
PAYMENT. 

Decedent's  estate,  debts,  244,  245. 
Execution,  139. 
Plea,  674. 

Justice  court,   102,  105. 

PEACE   WARRANT. 

Affidavit,  805. 

Bond,  806. 

Form,  805. 

Order  of  judge,   806. 

PEDIGREE. 

Proof,  37. 
PENAL   CODE. 

Forms,  etc.,  800-858. 

PERISHABLE   PROPERTY. 

Sale,  744-746. 

Administrator,  214,  215. 
Execution,  467,  468. 

PERSONAL  PROPERTY. 

Mortgage:    See  Mortgages. 

Sale  by  administrator,  215,  216,  230. 

PETITIONS. 

See  Declarations  or  Petitions. 

PLACE. 

Execution,  sale,  164. 

PLANTERS. 

Books  of  account  as  evidence,  37-40. 

PLEAS. 

See  Answer. 
Abatement,  169. 

Criminal   case,   820. 
Accord  and  satisfaction,  171. 
Autre  fois  acquit,  821. 
Autre  fois  convict,  822.' 
Consideration,    illegality    of,    366. 

Partial  failure,  104,  365. 

Total  failure,  104,  364,  365. 
Criminal    cases,    819-823. 
Ejectment,  defendant  in,  443. 
Former  jeopardy,  821,  822. 
Illegality  of  consideration,  366. 

Contract  for  fertilizers,  471. 
Insanity,  823. 
Jurisdiction,  to,  583,  584. 


INDEX 


893 


[REFEUENCES  ARE  TO  PAGES.] 


PLEAS — Cont'd. 
Justice  court,  102-106. 

Appeal,  117. 

Limitations,  statute  of,  256,  620. 
Lis  pendens,  170,  619. 
Misnomer,  criminal  case,  819. 
Ne   unques   administrator,   254. 
Non  est  factum,  action  on  note,  713. 

Justice   court,    102. 
Nul  tiel  corporation,  379. 
Payment,  674. 
Plene  administravit,  255. 
Plene  administravit  praeter,  255. 
Recoupment,  751. 
Release,  172. 
Res   judicata,   724. 
Revocation    of    letters    of    adminis- 
tration, 257. 
Set-off,  751. 
Settlement,    171. 
Statute  of  limitations,  256,  620. 
Tender,  762. 
Usury,    567,    568. 

PLEADING. 

See  Declarations  or  Petitions. 
Amendment,     continuance     because 

of,  19. 

Answers:     See  Answers. 
Demurrers,  equitable  petitions,  448, 

449. 

PLENE   ADMINISTRAVIT. 
Plea,  255. 

PLENE    ADMINISTRAVIT   PRAE- 
TER. 

Plea,  255. 

POLICE  COMMISSIONERS. 

Disqualification  as  judges,  5. 

POLITICAL  ACTIVITY. 

Judge  disqualified,  4. 

POSITIVE  EVIDENCE. 

Weight,  35. 

POSSESSION. 

See  Dispossessory  Warrant. 
Writs,  dispossessory  warrant,  427. 
Dower,  437. 
Ejectment,  444. 

Forcible    entry    and     detainer, 
474. 

POSSESSORY  WARRANT. 

Affidavit,  675.  • 

Bond    where   defendant   takes    pos- 
session of  property,  678. 


POSSESSORY    WARRANT— Cont'd. 
Bond — Cont'd. 

Where  property  is  turned  over 

to   plaintiff,    677. 
Commitment  of  defendant,  676. 
Entry  where   property   can   not  be 

found,  676. 

Judgment  in  reference  to  bond, -677. 
Notice    of    intention    to   certiorari, 

679. 
Warrant,  676. 

POWER   OF  ATTORNEY. 
Deeds,  execution,  391. 
Form,  702. 

POWER  OF  SALE. 

Deed,  with,  405. 

Cancellation  clause,  411. 
Mortgage,  in,  633,  645. 

PRACTICE  IN  SUPREME  COURT. 

Bill  of  exceptions,  acknowledgment 

of  service,  691,  697. 
Clerk's   certificate,   697,  698. 
Dismissal    of   petition    on   oral 

motion,  695. 

Entry  of  time  of  filing,  697. 
Exhibit,  693. 
Identification     of     exhibit     by 

judge,  693. 

Injunction    proceedings,    693. 
Judge's  certificate,  690,  695. 
Motion  for  new  trial  filed,  685. 
Pendente  lite  exceptions,  696. 
Refusal     of    motion     for    new 

trial,  689. 
Transcript     of     record,    clerk's 

certificate,   698. 
Without  motion  for  new  trial, 

691. 

Certiorari  rules,  684,  685. 
Code  provisions,  680-683. 
Continuance  for  absence  of  counsel, 

party  or  witness,  19. 
Remittitur,  judgment,  701. 
Supersedeas,   701. 

Bond,  civil  case,  698. 
Criminal   case,   699. 
Pauper  affidavit,  700. 

PRECEPT. 

Habeas  corpus,  arrest  of  body  of 
person  detained,  506. 

Jury  in  lunacy  proceedings,  sum- 
moning, 563. 

PREGNANCY. 
Divorce,  grounds,  523. 


894 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


PREPONDERANCE. 

Evidence,  33. 
PRESUMPTIONS. 

Fact,  34. 

Failure  to  produce  evidence,  35. 

Law,  34. 

Prima  facie,  definition,  34. 

PRESUMPTIVE   EVIDENCE. 

Definition,  33. 

PRIMA  FACIE  EVIDENCE. 
Presumption,   34. 

PRIMARY  EVIDENCE. 
Definition,  35. 

PRINCIPAL  AND  AGENT. 

Garnishment,  affidavit  and  bond  by 
agent,  144,  147. 

Illegality     proceedings,     filing    affi- 
davit, 141. 

Power  of  attorney,  702. 
To  execute  deed,  391. 

PRINCIPAL  AND  SURETY. 

See  Bonds. 
B'xecution  against,  460. 

Control  by  surety  paying,  468- 

470. 

Sheriff's  entry  where  se- 
curity desires  to  control, 
757. 

Judgment  against,  580. 
Note  by,  719. 

PRIVATE   SALES. 

See   Sales. 

PRIVILEGED      COMMUNICA- 
TIONS. 

Attorney  and  client,  42,  61. 

PRO  HAC  VICE. 

Judges,  7,  8. 

PROBATE. 

Deeds,  witnesses,  391. 
Mortgage,  for  record,  632,  633. 
Wills,  common  form,  780,  781. 

Nuncupative  wills,  786-788. 

Solemn  form,  781-784. 

PROCESS  AND   SERVICE. 

Certiorari,  writ  of,  339,  340. 
Citation  by  clerk,  705. 
Constables,  by,  369. 
Corporation,   704. 


PROCESS  AND   SERVICE— Con t'd. 

Deposition,  notice  of  taking,  574. 

Divorce,   526,   531. 

Ejectment,  442. 

Entry  of  service,  leaving  copy,  703. 

Minor,  704. 

Personal,  703. 

Publication,  order,  705. 
Form  of  process,  703. 
Garnishment,  notice  of  traverse  of 
answer,  150. 

Summons,  144,  145,  148. 

Return,  477. 

Guardian    ad    litem,    agreement    to 
serve,  705. 

Order  appointing,  704. 
Habeas  corpus,  writ,  504,  505. 
Homestead,    notice    of    application, 

513. 

Justice  court  process,  98,  99. 
Mandamus  proceedings,  629. 
Money  rule,  affidavit,  740. 
New  trial,  motion  for,  656. 
Notice  of  legitimation  proceedings, 
670. 

Levy  on  land,  754. 

To   produce  papers,   664. 
Scire  facias,  entry,  813. 
Summons,  justice  court,  591. 
Trover,  767. 

Wills,  petition  and  rule  to  compel 
production,  790. 

PROCESSIONING. 

Affidavit  of  service  of  notice,  707. 
Certificate  of  surveyor,  708. 
Notice     to     adjoining     landowners, 

707. 

Petition,  706. 
Protest  to  return  of  processioners, 

709. 
Return   of  processioners,   708. 

PRODUCTION  OF  PAPERS. 

Compelling,  for  use  in  evidence,  45- 
58. 

PROMISSORY  NOTES  AND  BILLS 
OF  EXCHANGE. 

Affidavit,   plea   of  non   est   factum, 

713. 
Attorney's  fees,  complaint  on  note 

providing  for,  710. 
Manifold  copy  of  notice  for,  178, 
•         712. 

Notice  to  defendant  to  recover, 
175.  178. 


INDEX 


895 


[KEFEKEXCKS  ARE  TO  PAGES.] 


PROMISSORY  NOTES  AND  BILLS 
OF  EXCHANGE— Cont'd. 

Bond  for  title,  purchase  money  note 
under,  716. 

Certificate  of  protest,  722. 

Collateral  note,  718. 

Complaint  on  note  providing  for  at- 
torney's fees,  710. 

Conditional  sale  note,  720. 

Copy  of  note  sued  on,  175,  177. 

Coupon  note,  real  estate,  714,  715. 

Credit  entered  on  note,  719. 

Decedent's    estate,    claim    against, 
244,  245. 

Farm  rent  note,  720. 

Gold  coin  note,  716. 

Homestead,  waiver,  713,  715. 

Indorser,  judgment  against,  580. 

Joint  and  several  note,  719. 

Justice  court,  jurisdiction  of  action 

on,  88. 

Petition  in  action  on,  96. 
Summons  in  action  on,  95. 

Landlord's    special    lien,    creating, 
598. 

Lien,  rent  note  with,  721. 

Loan  deed,  412. 

Lost,  establishment,  622. 

Manifold  copy  of  notice  for  attor- 
ney's fees,  178,  712. 

Non  est  factum,  plea,  713. 

Notice  of  protest,  722. 

To  defendant  to  recover  attor- 
ney's fees  on  note,  175,  178. 

Plea  of  non  est  factum,  713. 

Principal  and  surety,  note  by,  719. 

Protest,  certificate,  722. 
Notice,   722. 

Purchase    money,    reserving    title, 

330. 
Under  bond  for  title,  716. 

Real  estate  coupon  note,  714,  715. 

Rent  notes,  720,  721. 

Title,  note  retaining,  717. 

Waiver  of  homestead,  713,  715. 

PROOF. 

See  Evidence. 
PROTEST. 
Certificate,   722. 
Notice,   722. 
Processioners'   return,   709. 

PUBLIC   OFFICERS. 

De  facto,  evidence,  36. 

Particular     officers:      See     specific 

heads. 
Rules  against:    See  Rules   Against 

Officers. 


PUBLIC   REVENUE. 
See  Tax  and  Taxation. 

PUBLIC   ROADS. 

See  Roads. 

PUBLIC   SALES. 

See  Sales. 

PUBLICATION. 

Banks,    affidavit,    etc.,    of    corpora- 
tors, 313. 

Divorce   proceedings,   service,   531. 
Service  of  process,  705. 

PURCHASE-MONEY. 

See  Sales. 

Attachment  for,  286-291. 
Conditional  sale  note,  720. 
Note  under  bond  for  title,  716. 

PURGING. 

Jury,  right  of  party,  14. 

QUALIFICATIONS. 

Constables,  81. 

Judges :     See   Judges. 

Jurors:     See  Jury  and  Jurors. 

Justices  of  the  peace,  75. 

QUIT  CLAIM. 

Deed,  394. 

RAILROADS. 

Commencement    of    declaration    or 

petition,  suit  against,  387. 
RECEIPTS. 

Escrow  deed,  holder,  744. 
Fishing    license,    to    applicant    for, 

857. 

Guardian,  495. 
RECEIVERS. 
Commencement    of    declaration    or 

petition,  suit  by,  387. 
Petition,  447. 
RECOGNIZANCES. 
Appearance  of  accused  in  court  of 
inquiry,  809. 

Of   accused    in    superior    court, 
808. 

To    testify    in    superior    court, 

808. 

Criminal   warrant,   803. 
Forfeiture,  entry  of  service,  813. 

Rule  absolute,  813. 

Rule  nisi,  811. 

Scire  facias,  812. 
Justification  of  security,  810.     • 


896 


INDEX 


[REFEKENCES  ARE  TO  PAGES.] 


RECONVEYANCE. 

Bonds  to  reconvey,  408,  414,  419. 

RECORDS. 

Copies,  primary  evidence,  36. 
Exemplifications,       certificate       of 

clerk  of  court,  363. 
Mortgage,   probate   for   record,   632, 

633. 

RECOUPMENT. 
Plea,  751. 

REFERENCE. 

Auditors,  to:     See  Auditors. 

REFRESHING  MEMORY. 
Witness,  use  of  books,  40,  41. 

REINVESTMENT. 
Guardianship  funds,  493,  494. 
Homestead  property,  515,  516. 
Trust  funds,  773,  774. 

RELATIONSHIP. 

Degrees,  marriage,  521. 
Judge  disqualified,  2-4,  9-11. 
Jurors  disqualified,  13-18. 

RELEASE. 

Plea,  172. 

RELEVANCY. 

Evidence,  requirement,  34. 

RELIGIOUS  BELIEF. 

Witnesses,  competency  affected  by, 
60. 

REMITTITUR. 
Judgment  on,  701. 

REMOVAL. 

Administrator,  259-261,  267,  268. 

Attachment,  293,  294. 

Disabilities,     divorce     proceedings, 

535-537. 

Guardian,  486. 
Intruders,  577-580.     See  Intruders. 

REMOVAL  FROM  OFFICE. 

Constables,  79. 

Justices  of  the  peace,  74. 

REMOVAL  OF  ACTIONS. 

Justice  courts,  78. 

RENT. 

See  Landlord  and  Tenant. 


REPLEVY  BOND. 

Attachment,  296. 

Chattel   mortgage    foreclosure,    595, 

643. 

Execution,  459. 
Lien,  foreclosure,  618. 

REPORTS. 

Auditors,  304,  305. 

REQUISITIONS. 

Extradition   of  fugitives   from  jus- 
tice, 835-838. 

RES  GESTAE. 
Evidence,  37. 
RES  JUDICATA. 
Plea,  724. 
RESIDENCE. 

See  Non-Residents. 
Jurisdiction    of    justice    court    de- 
pendent on,  88. 

RESIGNATION. 

Administrator,   268-270. 
Guardian,  496. 

RESTRAINING  ORDER. 

Vacation,  548. 
RETURNS. 

Administrators,  annual  return   248- 

251. 

Final  return,  253,  254. 
Attachment,  285,  287,  289. 
Commission  to  take  testimony    64, 

65,  69,  572. 
Decedent's    estate,    appraisers,    243, 

246. 

Depositions,  73. 
Divorce  proceedings,  530. 
Dower,  commissioners,  435-437 

Sheriff,  437. 
Ejectment,  sheriff,  444. 
Forcible  entry  and  detainer,  sheriff, 

475. 
Garnishment  proceedings,  144    147, 

148,  157,  477. 

Habeas  corpus,  criminal  case,  841. 
Custodian    of   person    detained, 

506. 

Homestead,  appraisers,  515. 
Idiots,     guardianship     proceedings, 

556. 
Interrogatories,   commissioners,   64, 

65,  69,  572. 

Court  commissioner,  575. 
Processioners,  708. 


INDEX 


897 


[REFERENCES  ARE  TO  PAGES.] 


REVIEW. 

See  Appeal;  Certiorari;  Practice  in 
Supreme  Court. 

REVIEWERS. 
Roads,  726,  727. 

REVOCATION. 

Guardianship,  insane     person,   562- 

564.  '    . 

Letters  of  administration,  plea,  257. 

ROADS. 

Application  for  new  road,  725. 
Appointment  of  overseer,  736. 

Reviewers,  726. 
Apportionment  of  road,  application, 

732. 
Order      granting      application, 

732. 

Citation  of  ordinary,  727. 
Complaint  by   citizen  against  com- 
missioner, 738. 

Damages,   notice   of   trial   of   ques- 
tion  of,   734. 
Oath  of  jury,  734. 
Order   for,   735. 
Petition,  733. 
Verdict  of  jury,  734. 
Warrant  to  sheriff,  733. 
Defaulters,  commitment,  737. 

Commutation    tax,   notice,    737. 
Excuse  of,  730. 
Fieri  facias,  731. 
Judgment  of  board  of  commis- 
sioners, 731. 
List,  729. 
Notice  to,  730. 
Oath  of  witnesses,  731. 
Weekly  report  of  overseer,  729. 
Judgment  against  commissioner  for 

neglect  of  duty,  739. 
Notice  to  land  owners,  728. 

Negligent  overseer,  735. 
Order  establishing,  728. 
Reviewers,  appointment,  726. 

Report,  726,  727. 

Summons   of   ordinary   to   commis- 
sioner, 739. 
Of  road  hands,  729. 
To  commissioner  to  appear  be- 
fore grand  jury,  736. 

ROSTER. 

Soldiers,  sailors,  and  marines,  evi- 
dence, 36. 


RULE   ABSOLUTE. 

Particular    proceedings:     See    spe- 
cific heads. 

RULES   AGAINST   OFFICERS. 
Affidavit,  service  of  money  rule,  740. 
Attachment,  742. 

Constable,    84,    371-373.      See    Con- 
stables. 

Demand,    money   rule,   740. 
Justices  of  the  peace,  75. 
Money  rule,  demand,  740. 
Rule  absolute,  741. 
Rule  nisi,  741. 
Sheriff,  741. 

RULE   NISI. 

Particular    proceedings:     See    spe- 
cific heads. 

SAILORS. 

Roster  as  evidence,  36. 

SALES. 

Administrators:       See    Administra- 
tors and  Executors. 
Attachment     for     purchase-money, 

286-291. 
Bills  of  sale  of  personalty,  328-330. 

Sheriff,  755. 
Conditional,  note,  720. 
Constables,   by:     See  Constables. 
Contract  and  escrow  deed,  743. 
Escrow  deed,  743. 

Receipt  of  holder,  744. 
Estrays,  452. 
Execution,  perishable  property,  467, 

468. 
Guardianship    funds,    reinvestment, 

493,  494. 

Homestead    property,    for   reinvest- 
ment, 515,  516. 
Option  to  purchase,  746. 
Perishable  property,  affidavit  to  pe- 
tition to  sell,  745. 
Order,  746. 

To   show   cause,    745. 
Petition  to  sell,  744. 
Power  in  mortgage,  633,  645. 
Tax  sales,  760. 

Trust     property,     application,    773, 
774. 

SALT  WATER  FISH. 
Laws  relating  to,  853-856. 

SANCTION. 

Certiorari,  writ  of,  338,  339. 


898 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


SATISFACTION. 
Plea,  171. 
SAW  DUST. 

Floating  into  streams,  857. 

SAWMILLS. 

Liens  for  logs  furnished,  614,  615. 

SCHEDULES. 

Alimony,  proceedings  for,  530. 
Exempt  property,  509,  519. 

SCIEE  FACIAS. 

Dormant 'judgment,  order,  750. 

Petition  to  revive,  749. 

Writ,  749.  K 

Order    making    executor    party    de- 
fendant, 748. 

To  issue,  747. 
Parties,  making,  362. 
Recognizances,  forfeiture,  812. 
Writ,  747,  749. 

SEALS. 

Depositions,  71. 

SEARCHES  AND  SEIZURES. 

Affidavit,  807. 
Warrant,  807. 

SECONDARY  EVIDENCE. 

Admissibility,  36,  56. 
Definition,  35. 
Degree,  36. 

SECURITY. 

See  Principal  and   Surety. 

SECURITY   DEEDS. 

Code,  under,  416. 
Warranty  deed,  405,  411. 

SEPARATE   EXAMINATION. 
Witnesses,  108. 

SEQUESTRATION. 

Witnesses,  108. 

SERVICE. 

See  Process  and  Service. 

SET   OFF. 

Justice  court,  pleas,  103 
Plea,  751. 

SETTLEMENT. 

Administrator,  final,  261-263. 
Plea,  171. 


SHERIFFS. 

Advertisement  of  sale  of  land  levied 

on,  754. 
Pauper  affidavit  as  to  inability 

to  pay  fees,  754. 
Bill  of  sale,  755. 

Certificate   as   to    bailiff's   services, 

753. 

Deeds,  403,  404. 
Dower,  return,  437. 
Ejectment,  return,  444. 
Entry    of    dismissal    on    order    of 

plaintiff,  757. 

Payment    where     security     de- 
sires to  control  fi.  fa.,  757. 
Where  property  is  claimed,  755. 
Where  property  was  exempted, 

755. 
Fees,  381. 

Indorsement  on  execution,  455. 
Forcible  entry  and  detainer,  return, 

475. 

Jury  summons,  city  court,  753. 
Ordinary,  court  of,  753. 
Superior  court,  752. 
Justice  court  process,  service,  99. 
Notice  of  levy  by,  402. 
Pauper   affidavit  as  to  inability  to 

pay  advertisement  fees,  754. 
Receipts,   756. 
Rule  against,  741. 
Service  of  notice  of  levy  on  land, 

754. 

Tax  deed,  404. 
Trover,  return,  767. 

SHOPKEEPERS. 

Books  of  account  as  evidence,  37- 
40. 

SIGNATURES. 

Depositions,  70. 
Interrogatories,  67. 

SOLDIERS. 

Roster  as  evidence,  36. 

SOLICITOR    GENERAL. 

Response  to  demand  for  copy  of  ac- 
cusation and  list  of  witnesses, 
817. 

SPECIAL  DEMURRERS. 

Indictment,  818. 

SPECIAL  PLEAS. 

Criminal  cases,  819-823. 


INDEX 


890 


[REFERENCES  ARE  TO  PAGES.] 


STAFFORD'S      OFFICE      CALEN- 
DAR. 

Evidence,  admissibility  in,  36. 

STALLIONS. 

Liens  of  owners,  612-614. 

STATUTE   OF  LIMITATIONS. 

Account,  action  on,  109. 

Plea  of,  620. 

By  administrator,  256. 

STAY. 

Execution,  bond,  466. 

STEAMBOATS. 
Liens,  616. 

STEAM   MILLS. 

Laborer's  lien  on,  617,  618. 

STERN'S   UNITED   STATES   CAL- 
ENDAR. 

Evidence,  admissibility  in,  36. 

STRIKING  JURIES. 

Right  of  parties  or  attorneys,  16. 

SUBPOENAS. 

Witnesses,  Code  sections,  58,  59. 

County  commissioners,  796. 

Court  in  session,  795. 

Court  of  inquiry,  58. 

Court  of  ordinary,  666. 

Deposition,  575. 

Justice  court,  58,  592. 

SUBPOENA  DUCES   TECUM. 

Depositions,  71. 

Production    of    papers,   compelling, 

54-57. 
Witnesses,  797. 

SUBSCRIPTIONS. 
Corporate  stock,  347. 

SUFFICIENT  EVIDENCE. 
Definition,  32. 

SUGGESTION. 
Disqualification  of  judge,  5. 

SUMMONS. 

Account,  action  on,  97,  173,  174. 
Forcible    entry    and    detainer,    de- 
fendant, 473. 
Jury,   472. 

Garnishment,  144,  145,  147,  148,  156, 
476. 


SUMMONS—  Cont'd. 
Grand  jurors,  precept  for  summon- 
ing, 585. 
Jury,  city  court,  753. 

Court  of  ordinary,  753. 

Precept,  472. 

Superior  court,  752. 
Justice    court,    account,    action    on, 
97. 

Commencement  of  action,  93. 

Entry  of  service,  591. 

Form,   94,   95,   97,   588. 

Jury,  592. 

Service,  98,  99. 
Road   commissioner,   736,   739. 

Hands,   729. 

SUPERIOR  COURTS. 
Charters,  grant,  344-355.    See  Char- 
ters. 

Defenses  in  justice  court  same,  101. 
Executions,  454. 
Jury  summons,  752. 

SUPERSEDEAS. 
Bond,  698-700. 
Form,  701. 

SUPPLIES. 

Landlord's  lien,   599-602. 

SUPREME   COURT. 

See   Practice  in   Supreme   Court. 

SURPRISE. 
Continuance  for,  28,  32. 

SURVEYS. 

Homestead,  514. 

Processioning    proceedings,    certifi- 
cate of  surveyor,  708. 

TAX  AND  TAXATION. 

Deed  by  commissioner,  761. 

Sheriff,  404. 
Fi.  fa.,  form,  458,  760. 

Levy,  458,  760. 

Return  by  sheriff,  760. 

Sale,  advertisement,  760. 

Deed,  761. 

Notice    by    collector    to    taxpayers, 
759. 

By  receiver  of  tax  returns,  758. 
Oath  of  tax  collector,  759. 

Tax  receiver,  758. 
Order  levying  tax  for  county  pur- 
poses, 757. 
Tax  deed,  404,  761. 


900 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


TEMPORARY    INJUNCTION. 

Order  for,  545. 

TENANTS. 

See  Landlord  and  Tenant. 

TENDER. 

Plea,  762. 

TERMS  OF  COURT. 

Continuance  beyond,  21. 

TERMS  OF  OFFICE. 

Constables,  79. 

Justices  of  peace,  74. 

TERRITORIAL  LIMITS. 
Justice  court,  jurisdiction,  78,  88. 
TIMBER. 
Lease,  763. 

Saw  mills,   lien  for  logs  furnished 
to,  614,  615. 

TIME. 

Actions,  beginning  of:    See  Limita- 
tion of  Actions. 
Delay,  frivolous  appeal,  126. 

Illegality      proceedings,      dam- 
ages, 140. 
Execution,   sale,   164. 

TITLE. 

Bonds:  See  Bonds  for  Title. 
Claim   of:    See   Claim   of  Title. 
Heirs,  making  to,  238,  239. 
Note  retaining,  717. 

TRANSCRIPTS. 

Books,  evidence,  56. 

Record,  ordinary's  certificate,  666. 

TRANSFER  OF  CAUSES. 
Adjoining  justice's  district,  5,  6. 
County  site,  6. 

TRANSMISSION. 
Interrogatories,   certificate,   573. 

TRAVERSE. 

Attachment,  297. 
Certiorari,  answer,  342. 
Garnishment,  answer,  149,  150,  160, 
481,  482. 

TRIAL. 

Claim  cases,  130,  133-135. 
Demand  by  accused,  816. 
Garnishment,  issue  on  traverse,  149. 
Illegality  proceedings,  140,   141. 


TROVER. 

Alternative  verdict,  judgment,  769. 
Bail  affidavit,  766. 

Bond,  768. 

Election    to    take    alternative    ver- 
dict, judgment,  769. 

To    take    property,    judgment, 

769. 

Judgment,  769. 
Petition  in  action,  766. 
Process,  767. 
Sheriff's  return,  767. 

TRUSTS  AND  TRUSTEES. 

Affidavit   of   trustee,    sale   of   prop- 
erty,  774. 

Application     for     appointment     of 

trustee,  770. 
Sale  of  trust  property,  773,  774. 

Bond  of  trustee,  772. 

Consent  of  beneficiaries  to  appoint- 
ment of  trustee,  771. 

Deeds,  401. 

Illegality     proceedings,     filing    affi- 
davit, 141. 

Order  appointing  trustee,   772. 

Reinvestment    of    trust    funds,    ap- 
plication, 773,  774. 

TRUST    COMPANIES. 

Affidavit    of    subscribers    to    stock, 

320. 

Application  for  charter,  318. 
Notice  of  intention  to  organize,  318. 

TURPENTINE. 
Lease,   764. 

USURY. 

Pleas,  567,  568. 

VACANCIES   IN   OFFICE. 

Constables,  79. 

Justices  of  the  peace,  75. 

VACATION. 

Injunction,  motion,  548. 
Restraining  order,  548. 

VENDOR  AND  PURCHASER. 

See  Sales. 

VENIRE   FACIAS. 
Grand  jury,  586. 

VERDICT. 

Alternative,     judgment    in     trover, 
769. 


INDEX 


901 


[REFERENCES  ARE  TO  PAGES.] 


VERDICT— Con  t'd. 
City   or  county   court,   829. 
Claim  cases,  135,  359. 
Criminal  case,  826. 
Dispossessory  warrant,  427. 
Divorce   proceedings,   533,   534. 
Ejectment,  443. 

Forcible  entry  and  detainer,  474. 
Intruders,  removal,  578. 
Liens,  setting  up,  606. 
Lunacy  proceedings,  561,  564. 
Money,  judgment  on,  580. 
Mortgages,  foreclosure,  648. 

VERIFICATION. 
See  Affidavits. 

VOIR  DIRE. 

Questions  to  jurors,  826. 

WAGES. 

Garnishment,    exemption,    152,    153. 

WAIVER. 

Accusation  in  city  or  county  court, 

829. 

Arraignment,   824. 
Homestead,   in  mortgage,   631,   633. 

In  note,  713,  715. 
Interrogatories,  notice,  570. 
Judges,   disqualification  of,   10. 

WALLS. 

Inscriptions  on,  copies  as  evidence, 
36. 

WARRANT. 

See       Dispossessory     Warrant; 
Distress  Warrant;  Possessory 
Warrant. 
Bastardy,  affidavit,  830. 

Form,   830. 
Bench,  bond,  827. 

Entry  of  arrest,  828. 

Form,  827. 

Criminal   warrant  in  justice  court, 
affidavit,  800. 

Commitment,  801. 

Constable's  return,  801. 

Form,  800. 

Order  of  commitment,  801. 

Recognizance,  803. 
Good  behavior,  affidavit,  803. 

Bond,  804. 

Entry  of  arrest,  804. 

Form,  804. 
Insane  person,  commitment,  565. 


WARRANT— Con  t'd. 
Peace,  affidavit,  805. 

Bond,  806. 

Form,  805. 

Order  of  judge,  806. 
Search,  affidavit,  807. 

Form,  807. 

WARRANTY  DEEDS. 

Forms,    392,   393. 

Loans,  to  secure,  405,  411. 

WIDOWS. 

Dower:     See  Dower. 

WILD  LANDS. 

Sale  by  administrator,  225-227,  399. 

WILLS. 

See  Administrators  and  E'xecu- 

tors. 

Attestation,  775,  777,  779. 
Codicil,  779. 
Forms,  775-779,  786. 
Letters  testamentary,  785,  788. 
Nuncupative  will,  786. 

Affidavit  of  witnesses,  787. 
Letters   testamentary,   788. 
Notice  to  heirs,  787. 
Order  of  court,  788. 
Oath  of  executor,  785. 
Primary  evidence,  36. 
Probate  in  common  form,  affidavit 
of  subscribing  witness,   780. 
Order,   781. 
Petition,  780. 

Probate,  nuncupative  will,   786-788. 
Probate    in    solemn    form,    caveat, 

784. 

Citation,  783. 
Guardian  ad  litem,  783. 
Order,  784. 

Directing  citation  to  issue, 

782 

Petition,  781. 

Production,  petition  to  compel,  789. 
Rule  absolute,  790. 
Rule  nisi,  790. 
Service    of    petition    and    rule, 

790. 

Short  form,  775. 

Temporary  administration  pending 
appeal   on   propounded   will,   183. 

WITHDRAWAL. 

Claim,   130. 

Fi.  fa.,  claim  case,  131. 


902 


INDEX 


[REFERENCES  ARE  TO  PAGES.] 


WITNESSES. 

See  Depositions  without  Com- 
mission; Evidence;  Interrog- 
atories. 

Absence,    continuance    for,    19,    20, 
25,  44,  374. 

Adultery,  competency  of  witnesses, 
61. 

Affidavit  as  to  attendance,  795. 

Continuance   for   absence,    374. 

Affirmation,  63. 

Arrest,  freedom  from,  60. 

Attachment  to   compel  attendance, 
59,  74. 

Breach  of  marriage  promise,   com- 
petency of  witnesses,   61. 

Competency,   60-62. 

Continuance  for  absence,  19,  20,  25, 
44,  374. 

Cross-examination,   63. 

Deeds,   probate,  391. 

Demand   for   list,   by   accused,    817. 

Depositions:    See  Depositions  with- 
out  Commission. 

Drunkards,     competency     as     wit- 
nesses, 62. 

Examination,    63. 
Separate,  108. 

Fees,  59,  60,  62. 

After  continuance,  21. 
Excessive  claim,   59. 
Indorsement  on  execution,  456. 

Habeas    corpus    ad    testificandum, 
imprisoned  witnesses,   59. 

Idiots,  competency  as  witnesses,  62. 

Infants,    competency   as    witnesses, 
62. 

Insane  persons,  competency  as  wit- 
nesses, 62. 

Interrogatories:       See       Interroga- 
tories. 

Lunatics,  competency  as  witnesses, 
62. 

Nuncupative  wills,  affidavit,  787. 

Oaths,  63,  108. 

Criminal  case,  826. 
Grand  jury,  before,  586. 

Recognizance     to     compel     appear- 
ance to  testify,  808. 

Religious   beliefs   of   witnesses,   60. 


WITNESSES— Cont'd. 

Rule  against   defaulting  witnesses, 

797,  798. 

Separate  examination,  108. 
Service  of  subpoena,  59. 
Subpoenas,    Code   sections,   58,   59. 

County  commissioners,   796. 

Court  in  session,  795. 

Court  of  inquiry,  58. 

Court  of  ordinary,  666. 

Deposition,   575. 

Duces  tecum,  797. 
Depositions,    71. 
Production  of  papers,  com- 
pelling, 54-57. 

Justice  court,  58,  592. 

Service,   59. 

Women  witnesses,   44. 
Treatment,  63. 
Wills,  775,  777,  779. 

WOMEN. 

Witnesses,   subpoenaing,   44. 

WHITS. 

Attachment:     See  Attachment. 
Certiorari:     See  Certiorari. 
Dower,  admeasurement,   434. 
Habeas  corpus,  829-841.  See  Habeas 

Corpus. 

Habere  facias  possessionem,  579. 
Injunction:     See   Injunction. 
Mandamus:     See    Mandamus. 
Ne  exeat,  divorce  and  alimony  pro- 
ceedings, 541,  542. 
Possession,   dispossessory   warrant, 

427. 

Dower,  437. 
Ejectment,  444. 
Forcible    entry    and    detainer, 

474. 

Scire     facias,     747-750.     See    Scire 
Facias. 

WRITTEN   INSTRUMENTS. 
Best  evidence,  35. 

YEAR'S  SUPPORT. 
Decedent's   'family,     232-235.       See 
Administrators  and  Executors. 


A     000688388     8 


